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Shib Charan Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1931All49
AppellantShib Charan
RespondentEmperor
Excerpt:
.....he was however satisfied that the accused received the note from the boy knowing it to be stolen property. 100/- in his possession, and that he unsuccessfully tried to conceal the fact that he had the note in his possession. in these circumstances i think it was perfectly open to the court to find that the boy's statement, about handing over the stolen note to the accused, was true. (a) to section 236 shows clearly that a man may be charged, in respect of the same act, with theft, receiving stolen property, criminal breach of trust and cheating, i. the trial court was clearly empowered to frame a charge under section 411, i. unless i consider that a failure of justice has in fact been occasioned thereby. in this case there has been no failure of justice......and therefore the boy's evidence should be held insufficient to prove that the delivered the stolen note to the accused. the boy's statement that he delivered the hundred rupees note to the accused does however receive some corroboration from the facts that the accused, when he was arrested with the boy, had a note of us. 100/- in his possession, and that he unsuccessfully tried to conceal the fact that he had the note in his possession. in these circumstances i think it was perfectly open to the court to find that the boy's statement, about handing over the stolen note to the accused, was true. the accused must have known that this note was stolen property. i think there are no grounds whatever for setting aside the conviction under section 411 upon the merits.3. it has been.....
Judgment:
ORDER

King, J.

1. This is an application in revision against an appellate order of the learned Sessions Judge of Mearut convicting the applicant under Section 411, I. I? C. The accused was charged in the trial Court with kidnapping a boy from the lawful guardianship of his father and with having stolen a hundred rupee note, under Sections 363 and 379, I. P.C. The trial Magistrate convicted the accused under both sections. In appeal the learned Sessions Judge set aside the conviction under Section 363 on the ground that it was at least doubtful whether the boy whom the accused had taken away, was under the age of fourteen years on the date of the alleged offence.

2. With reference to the conviction under Section 379 the Judge found that the evidence did not prove that the accused himself, committed the theft of the note. The facts alleged by the prosecution were that the boy himself stole the note from his father, at the instigation of the accused, and made it over to the accused. On these allegations I agree with the learned Sessions Judge that the accused should have been charged with abetment of the theft under Section 379/109 and with, dishonestly receiving stolen property under Section 411, I. P.C. The Judge found, that there was no evidence that the accused instigated the boy to commit the theft, excepting the evidence of the boy himself, and did not think it safe to rely on the boy's statement in the absence of any corroboration. He was however satisfied that the accused received the note from the boy knowing it to be stolen property. He accordingly altered the conviction under Section 379 to-one under Section 411, I. P.C. It has been argued on the merits that there is no evidence to prove the guilt of the accused under Section 411, I. P. C, apart from the boy's own statement which the learned Judge considered insufficient to prove the allegation that the accused instigated the boy to commit the theft, and therefore the boy's evidence should be held insufficient to prove that the delivered the stolen note to the accused. The boy's statement that he delivered the hundred rupees note to the accused does however receive some corroboration from the facts that the accused, when he was arrested with the boy, had a note of Us. 100/- in his possession, and that he unsuccessfully tried to conceal the fact that he had the note in his possession. In these circumstances I think it was perfectly open to the Court to find that the boy's statement, about handing over the stolen note to the accused, was true. The accused must have known that this note was stolen property. I think there are no grounds whatever for setting aside the conviction under Section 411 upon the merits.

3. It has been further argued that the learned Sessions Judge had no jurisdiction to alter the conviction under Section 379 to one under Section 411, I. P.C. It is con-coded that under Section 235, Criminal P.C., the Magistrate was empowered to charge the accused with offences under Sections 363 and 379 and to try him at one trial on both charges, as the alleged offences were so connected together as to form the same transaction. It is argued however, that when the provisions of Section 235 are untilized, by way of an exception to the general rule laid down in Section 233, then no other section (such as Section 236) which imports an exception to that general rule can also be brought into use. In other words, the provisions of Sections 235 and 236 are said to be mutually exclusive. It is urged, therefore that as the provisions of Section 235 have been relied upon for the purpose of trying the two offences under Sections 363 and 379, no recourse can be had to the provisions of Section 236, and, therefore the provisions of Section 237 also cannot be utilized for the purpose of altering the conviction under Section 379, I. P C. to one under Section 411, I. P.C. I have been referred to the ruling in Janeshar Das v. Emperor : AIR1929All202 in which it was held by a single Judge of this Court that the provisions of Sections 234,235 and 236 were mutually exclusive. The facts of that case were very different from the facts of the case before me, and the main reason for holding that the trial in that case was illegal was that the two persons, who were being jointly tried, had been charged with three offences and each offence was framed in the alternative either of criminal breach of trust or abetment thereof. The result was that the accused had to meet six distinct sets of circumstances, and this was contrary to the spirit of the provisions of Section 233. In the present case no questions -arise about undue multiplicity of charges, or about the joint trial of two or more offenders. The ruling therefore does not appear to be directly applicable to the present case although it does contain a remark that supports the applicant's contention.

4. In the present case the accused was alleged to have (1) instigated a boy to commit theft and (2) dishonestly received stolen property from the boy and (3) kidnapped the boy from lawful guardianship. These acts formed a series and were so connected together as to form the same transaction. Looking at the provisions of Section 235 (1) alone, apart from anything else in the Code, I think it is clear that the accused could (and in my opinion should) have been charged with, and tried at one trial for offences under Sections 379/109, 411 and 363, I. P.C. As a matter of fact the Magistrate charged him with offences under Sections 379 and 363, I.P.C. I think the Magistrate was wrong in framing the charge under Section 379, I. P.C., because no one alleged that the accused himself committed the theft.

5. Now the question arises whether the provisions of Section 236 could not be utilized as supplementing the provisions of Section 235 (1). Supposing the Magistrate were doubtful which of several offences the provable fact should constitute, e. g., whether they would constitute an offence of theft, or of abetment of theft, or of receiving stolen property in addition to the offence of kidnapping. Would he not, in such circumstances, be authorized under Section 235 (1) read with Section 236 in charging him with offences under Sections 379, 379/109, 411 and 363, I. P. C, and in trying him for every such offence? I cannot see anything in the Code or in the requirements of justice which prohibits such procedure. On the contrary such procedure seems to me to be expressly authorized by the Code. It cannot be said that the accused would be embarrassed by having to meet a larger number of charges than the legislature contemplated. Illus. (a) to Section 236 shows clearly that a man may be charged, in respect of the same act, with theft, receiving stolen property, criminal breach of trust and cheating, i. e., with four charges in respect of one act. I cannot understand why Sections 235 and 236 should be regarded as mutually exclusive so that whenever a person is tried for two or more offences committed in the course of the same transaction, Section 236 must be deemed to have been expunged from the Code. It is a general rule of interpretation that effect must be given to every part of a statute and I see no reason in the present case why Section 235 (1) should not be supplemented by Section 236. On this view the accused could have been charged under Section 236 with an offence under Section 411, I. P.C. in addition to an offence under Section 379, I. P.C. It follows that under Section 237 the appellate Court was justified in convicting the accused under Section 411, I. P.C. although he had not been expressly charged with that offence.

6. Even if I am wrong in my view, there is another reason for refusing to interfere in revision. The trial Court was clearly empowered to frame a charge under Section 411, I. P. C, in addition to the charge of theft, by reason of the provisions of Section 235 (1), Criminal P. C, alone, leaving Section 236 out of account.

7. Now under Sections 535 and 537, Criminal P.C., I am prohibited from setting aside the conviction and sentence as invalid merely on the ground that no charge was framed under Section 411, I. P. C, or on the ground that a charge was wrongly framed under Section 379, I. P.C. unless I consider that a failure of justice has in fact been occasioned thereby. In this case there has been no failure of justice. The accused had to admit that, when he was caught with the boy, he had a hundred rupee note in his possession. His case was that the note belonged to him and that it had not been made over to him by the boy. The Court found that the note was stolen property received from the boy. It cannot be said that the accused was prejudiced by not having to meet a specific charge of receiving stolen property. The result of a re-trial upon a charge under Section 411 would be a foregone conclusion. For 'this reason also I reject the application. The applicant must surrender to his bail and serve the remainder of his sentence.


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