1. In this case the Rule was issued on one ground alone, namely, that in the absence of: a definite charge under Section 379/114, I. P. C., the conviction of the petitioner was improper and illegal. The facts of the case are as follows:
2. A boy of the name of Dhuman Kalwar was arrested as he was removing a pulley from the premises of Messrs. Burn & Co., Engineers. He explained his possession of the pulley by saying that shortly after his arrival in Calcutta he met the present petitioner who promised him a reward of four annas for carrying a load for him, and that the accused then took him to Messrs, Burn & Co.'s workshops and brought out a crane-pulley and put it on his head.
3. The boy Dhuman gave evidence to this effect and his story has been accepted both by the trial Court and the lower appellate Court. The charge on which the accused was tried was a charge under Section 379. The trying Magistrate, taking into consideration the fact that the actual removal was the work not of the petitioner but of the boy who was acting under his directions, has convicted him not under Section 379 but, under Section 379/114. In other words, he has convicted him of the offence of abetment of theft.
4. It has been argued before us that in no circumstances can his conviction for abetment be legal if the charge was merely one of the principal offence, and our attention has been drawn to certain authorities. The first of these authorities is Emperor v. Prafulla Kumar A.I.R. 1923 Cal. 453. That is a decision of Sanderson, C. J., and Panton, J. The head-note runs thus:
An accused charged under Section 302/34, Penal Code, cannot be convicted under Section 802/114, Penal Code.
5. In my opinion the case does not go so far as the head-note indicates. In that case a person had been accused under Sections 302 and 302/34,. Penal Code. In my opinion this is not the correct form of a charge at all because Section 34 does not create an offence but merely enacts a principle of criminal liability, and I consider that if the accused is charged under Section 302 he should not also be charged under Section 302/34. Be that as it may, in that case the accused person was acquitted by the jury and the learned Sessions Judge referred the matter to the High Court under Section 307, Criminal P.C., and expressed an opinion that the accused should be convicted under Section 302/34. Sanderson, C. J., in dealing with the case observed:
It seems to me therefore that the charge which should have been preferred against the accused as an alternative to the main charge under Section 302, I. P. C, was a charge under Section 302 read with Section 114, I. P. C.
6. It was clearly therefore the opinion of the Chief Justice that by reason of Section 236, Criminal P. C, it would have been legitimate to charge the accused under Section 302 and in the alternative under Section 302/114. Once that is granted, it is clear that under the provisions of Section 237, Criminal P. C., it would be permissible to convict the accused of an offence under Section 302/114 even though he has charged only under Section 302. What gave rise to the language of the headnote is the words that followed,
The learned vakil for the accused has argued that as the accused was not charged under Section 114 with abetment he cannot now be convicted by this Court under Section 114 inasmuch as the charge was not framed against him in the trial Court. We are of opinion that we must accede to that argument.
7. It will be observed that there the learned Judges were dealing with the position when a case is referred to this Court under Section 307, Criminal P. C, and I understand those words to mean that in the circumstances of the particular case it would not be right for the High Court to convict the accused of the offence under Section 302/114. I do not read those words to mean that in no circumstances would it be possible to convict an accused person of abetment when he is only charged with the principal offence. The order that was passed in that case was that the case should be retried on charges framed under Section 302/114.
8. The other case to which our attention has been drawn by the learned advocate for the petitioner is Hulas Chand Baid v. Emperor : AIR1927Cal63 . That was a decision of Duval and Graham, JJ. Both the learned Judges held that the principal witness for the prosecution, namely, the complainant, was an accomplice and they allowed the appeal mainly on the view which they took of the facts--being of opinion that the evidence was insufficient to warrant a conviction. It is true that both the Judges did deal with the question of the necessity of a charge of abetment before the conviction of abetment can be substained and they did indicate that in their opinion a conviction for abetment was wrong when there was no charge of abetment. It appears to me, however that their attention was not directed to the section which governs the matter. It seems that there the prosecution attempted to. justify the conviction of abetment by the provisions of Section 238 which deals with a case where a person is charged with a grave offence and is found guilty of a minor offence. In Sub-section 2-A of that section it is provided that when a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged. It is argued from that that inasmuch as the section permits of a conviction of an attempt to commit an offence, it by implication excludes a conviction of abetment. I cannot accept that view. It] appears to me that this case falls within the conditions of Section 236. A conviction of abetment, although it is not charged is lawful not by reason of Section 238 but by reason of Section 237. This view has been adopted in the more recent case of Jananada Charan v. Emperor : AIR1929Cal807 . In that case Suhrawardy and Jack, JJ., carefully examined all the cases and came to the conclusion that each case must be considered upon its own merits and that the authorities do not justify a general proposition to the effect that in no case where the substantive offence only is charged is a conviction for abetment legal.
9. Finally, our attention has been drawn to the case of Mahabir Prasad v. Emperor : AIR1927All35 which certainly does support the petitioner's contention. But that was a decision of a single Judge of the Allahabad High Court and I am prepared to follow it in preference to those which, I think, are consistent with the previous authorities and which do not, in my opinion, when carefully examined, support the contention advanced on behalf of the petitioner. In my opinion, the circumstances of this case fall within Section 236. I do not think that the petitioner was in the smallest degree prejudiced by the absence of a charge under Section 379/114. That being so, it seems to me that Section 237 can be invoked to support the legality of the conviction.
10. In the circumstances, the) Rule is discharged.
11. The petitioner must surrender to his bail and serve out the sentence.
M.C. Ghose, J.
12. I agree.