1. The only question of law argued before us on behalf of the petititioner is that his conviction for abetment of the substantive offence, though he was not charged with it originally, is erroneous in law. Three persons were tried on a charge under Section 420, I.P.C. The petitioner is the third accused and he is said to have taken part in carrying out the purpose of the cheating. They were further charged under Section 120-B for conspiracy. The facts are that one Alekjan Bibi was induced to sell her property to accused 1 Wazaddi under circumstances which made it a clear case of cheating. She was told that she was to execute a kabala in favour of someone else for Rs. 300. As a matter of fact that kabala was written in favour of Wazaddi to the knowledge of the petitioner and a bundle of money purporting to be Rs. 300 was made over to Alekjan Bibi. It was subsequently found to contain small coins and pice worth Rs. 5. On these facts as elaborated in the evidence the accused were charged under Sections 120-B and 420, I.P.C. The petitioner was convicted under Section 420 read with Section 114, I.P.C. and sentenced to three months rigorous imprisonment, though there was no charges framed under Section 114. It is argued that there being no such charge against the accused he could not be convicted under that section. There is some divergence of opinion on the question as to whether a person having been charged with a substantive offence can be convicted for abetment thereof. It is not necessary to refer to all the the various cases that have been cited before us bearing upon this point, for I think the right view of the question raised before us is that it cannot be definitely laid down that a person having been charged with a substantive offence cannot be convicted for abetment thereof. Every case depends upon its own facts and if the facts justify the conviction for abetment, though the person was charged with the commission of the offence itself, there is no bar in law to such conviction. The principle is what was laid down long ago in Reg v. Chand Nur 11 B.H.C.R. 240 where it is said that if evidence adduced in support of the charge for the substantive offence does not give notice to the accused of all the facts which would constitute abetment he cannot be convicted of abetment. This question was considered in the case of Indar Chand v. Emperor  42 Cal. 1094. Woodroffe, J., who was third Judge, to whom the case was referred on account of difference of opinion between two Judges observed at p. 1133:
I am not prepared to hold as a universal rule that in no case can there be a conviction for abetment where the charge is only for the substantive offence.
2. The same view has been expressed in the unreported case of the Emperor v. Kadira : AIR1928Cal466 by C.C. Ghose, J., in these words:
It is true that there was no charge of abetment of murder against the present appellant before the jury but in my opinion it cannot be laid down as a universal rule that in no circumstances whatsoever where there is a charge for a substantive offence and there is no charge of abetment of that offence can the person so charged with substantive offence be convicted of abetment of that offence.
3. The same view has been expressed in Emperor v. Mohabir Prosad : AIR1927All35 and Dibakar v Saktidhar Kaviraj : AIR1927Cal520 . A great deal of support for this view is to be obtained from the decision of the Judicial Committee in Reg. v. Emperor where the accused was charged under Section 302, I.P.C. but convicted under Section 201, I.P.C., for destroying the evidence for the commission of that offence. Their Lordships remarked:
A man may be convicted of an offence although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made.
4. I must, therefore, submit with great respect that the view taken in Hulas Chand Baid v. Emperor : AIR1927Cal63 by one of the Judges and adopted by the other Judge and couched in general language is not supported by authority. There are some cases which have held to the contrary but which seemed to have proceeded only upon the reading of Section 238, Criminal P.C. and make no reference to the other relevant Section 237. Padmanaba v. Emperor  33 Mad. 264 and Emperor v. Rughya Nagya A.I.R. 1924 Bom. 432.
5. We have next to consider as to whether in the words of the Judicial Committee there is evidence such as to establish the charge of abetment and whether the accused has, by the absence of the charge of that offence, been prejudiced The fact deposed to in the complainant's evidence and the evidence of her witnesses has been found by the Judge to be that the petitioner wrote the kabala in the name of accused 1 ; and the circumstances under which the money was actually made over to Alekjan show that the petitioner was a party in the cheating, He brought the receipt from the Sub-Registrar's office and made it over to accused 1. It was further proved that the petitioner was to make over the money to the complainant but he refused to do so as there was a danger if the bundle was opened before the Sub-Registrar. These facts sufficiently prove that the petitioner was privy to the commission of the substantive offence by accused 1. Upon these facts the petitioner's conviction was based and he had full notice that he had to meet the allegations in his defence.
6. The petitioner was further charged under Section 120-B. But it appears that no order was passed under that section by any of the Courts below, We have therefore ample authority under Section 423, Criminal P.C., to alter the finding and convict the accused under Section 120-B on the finding of fact arrived at by the learned Sessions Judge who says:
it is clear that it Wazaddi was to carry through his plot successfully he would need the help of some one to write the deed. The circumstances under which the deed was written and in particular the circumstances under which the money was actually made over show that Gnanendra must have been a privy to the plan.
7. In any view of the case the accused has been rightly convicted and sentenced.
8. The rule is therefore, discharged. The petitioner's bail bond should be cancelled. He must serve out the remainder of the sentence.
9. I agree. I would only like to add that in my opinion whether a man can be convicted without a separate charge on a charge of abetment of the principal offence depends upon the circumstances of the case. But it can only be done where the circumstances bring the case under Section 237, Criminal P.C. In the present case I think the circumstances are such as to bring the case under Section 237 and I think the Court was justified in convicting the accused inasmuch as the absence of a separate charge was not likely to prejudice the petitioner. I think, however, that in this particular case the trial Court should have convicted the accused under Section 120-B, I.P.C. The learned Judge finds that there is no direct evidence to sustain the charge under Section 120-B against four accused persons. It is not easy to understand what he means by this inasmuch as the evidence on which he convicted the petitioner under Section 420/114 was in itself sufficient to convict him on the charge under Section 120-B. On the findings arrived at by both the Courts below the petitioner was clearly guilty under Section 120-B and he ought to have been convicted under that section. But inasmuch as the appellant has not been prejudiced by the procedure adopted it is not necessary for us to interfere.