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Khalle Fodalia and anr. Vs. Harnarayan Sunderlal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCri. Misc. Case No. 3 of 1957
Judge
Reported inAIR1958MP1; 1958CriLJ40
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 237; Indian Penal Code (IPC), 1860 - Sections 379 and 403
AppellantKhalle Fodalia and anr.
RespondentHarnarayan Sunderlal
Advocates:Shiv Dayal, Deputy Government Adv.
Cases ReferredBegu v. Emperor
Excerpt:
- - with great respect i am of the opinion that these un-reported decisions of the madhya bharat high court require reconsideration, because according to section 237 of the criminal procedure code, such a conviction is perfectly valid......under section 379. i. p. c. for theft, the trial court held him guilty under section 403 for the offence of criminal misappropriation and fined him rs. 20/-. the accused being unable to file an appeal because of the bar of section 413, cr. p. c., filed a revision before the sessions judge of guna, who has made this reference for setting aside the conviction and sentence on the ground that since the accused was not charged under section 403, he cannot be convicted under it.2. in expressing this view the learned sessions judge has followed the decisions given in criminal revisions nos. 52 of 1951 and 70 of 1953 (a) of the madhya bharat high court. in these cases it has been held that where a man is charged under a particular offence, he cannot be convicted for having committed another.....
Judgment:
ORDER

Abdul Hakim Khan, J.

1. Har Narayan lodged a complaint before the Sub-Divisional Magistrate, Moonga-wali under Section 379, Indian Penal Code, that 3,000 bricks were stolen from his klin during his absence when he had been away to see his ailing mother, who eventually died. He later on discovered that two cart-loads of bricks were taken away by the accused Khalle. The trial Court held that the facts were proved, but instead of convicting the accused under Section 379. I. P. C. for theft, the trial Court held him guilty under Section 403 for the offence of criminal misappropriation and fined him Rs. 20/-. The accused being unable to file an appeal because of the bar of Section 413, Cr. P. C., filed a revision before the Sessions Judge of Guna, who has made this reference for setting aside the conviction and sentence on the ground that since the accused was not charged under Section 403, he cannot be convicted under it.

2. In expressing this view the learned Sessions Judge has followed the decisions given in Criminal Revisions Nos. 52 of 1951 and 70 of 1953 (A) of the Madhya Bharat High Court. In these cases it has been held that where a man is charged under a particular offence, he cannot be convicted for having committed another offence. With great respect I am of the opinion that these un-reported decisions of the Madhya Bharat High Court require reconsideration, because according to Section 237 of the Criminal Procedure Code, such a conviction is perfectly valid. Section 237 says that if the accused is charged with one offence, and it appears from the evidence that he has committed a different offence for which he might have been charged, the accused may be convicted of the offence of which he is shown to have committed although he was not charged with it.

3. The illustration to Section 237, Cr. P. C., makes the meaning abundantly clear. The illustration runs thus :

'A is charged with theft. It appears that he committed the offence of criminal breach of trust or that of receiving stolen goods. He may be convicted of criminal breach of trust or of receiving stolen goods (as the case may be) though he was not charged with such offence.'

4. I am further fortified in my opinion by a decision of their Lordships of the Privy Council reported in Begu v. Emperor, AIR 1925 PC 130 (B). In this case their Lordships of the Privy Council observed that where the accused were charged under Section 302, I. P. C., and on evidence they were found to be guilty of an offence under Section 201 (causing the evidence of crime to disappear) and so were convicted under the latter section, the conviction was proper.

5. Similarly their Lordships of the Supreme Court in Bejoy Chand Patra v State of West Bengal, AIR 1952 SC 105 (C), held that where the accused was charged under Section 307, Penal Code, he might be convicted under Section 326, even in the absence of a charge in respect of it, if on the facts of the case he could be charged alternatively under Ss. 307 and 326, I.P.C. In making this pronouncement, their Lordships of the Supreme Court followed AIR 1925 PC 130 (B), which has been referred to above.

6. For reasons stated above the recommendation of the learned Sessions Judge is unacceptable and I hold that although a person may be charged under a particular offence, yet he can beconvicted of a different offence, provided the evidence supports it.


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