1. The appellant before us has been convicted by the learned Sessions Judge of Cachar under Sections 467/471, Indian Penal Code, and has been sentenced to undergo rigorous imprisonment for a period of six years. He was put on his trial along with four others--Shajid Ali, Atar Ali, Yakub Ali and Salim Mia, they being charged under Section 467 with forgery and he being charged under Section 467 read with Section 109 of abetment of forgery. The four others were acquitted. The trial was with the aid of three assessors who found the accused guilty of having abetted the forgery of a pertain document.
2. The case for the prosecution was that the accused Shajid Ali had written out a kobala by which Mahomed Yusuf, and Sultan Mahomed purported to convey to the accused, Harun Rashid, 120 bighas of land for Rs. 4,000, the consideration being accounted for as follows, namely, Rs. 2,000 due to Harun Rashid on account of a certain debt and Rs. 2,000 commission due to him from them. In other words, no money was alleged to have been paid at the time of the execution of the kobala. The three witnesses to the execution of the kabala were the accused Atar Ali, Yakub Ali and Salim Mia who were discharged by the Judge as not knowing that the deed was a forgery. As regards the accused Shajid Ali, there was evidence that he had written out the kabala in question. The assessors found him guilty of forgery but the learned Sessions Judge, being of opinion that there was nothing to show that Shajid Ali did not write out the kobala bona fide at Harun's request, acquitted him as stated above. The charge against the appellant Harun Rashid was that he had abetted the forgery of a valuable security which was forged in consequence of his abetment.
3. The evidence goes to show that he presented the kobala for registration at the Sub-Registrar's Office. The Sub-Registrar thereupon called on the alleged executants to attend and thereafter the alleged executants appeared and denied execution of the document. The learned Sessions Judge found on the evidence that there could be no doubt whatsoever that the kobala in question was a false document. It was clearly a valuable security and its very nature showed that it was made with intent to cause the alleged executants to part with property. It was, therefore, a forged document. He found that there was no evidence worth the name that Harun had abetted the forgery by entering into a conspiracy to procure the forgery, but he was of opinion that the transaction as disclosed in the evidence pointed rather to Harun having committed an offence punishable under Section 471 of the Indian Penal Code, i.e. Harun had used the document as a genuine one knowing that it was a forgery and that the recitals in the said document were all untrue and that his intention was to cause wrongful loss to the alleged executants. The learned Sessions Judge was of opinion that Harun should have been charged under Sections 467/471, Indian Code, the user of the forged document being its presentation to the Sub-Registrar for registration. He accordingly convicted him under the said sections and sentenced him as stated above.
4. On behalf of the appellant it has been argued that he having been tried on a charge of abetment of forgery cannot be convicted under Section 471 of using a forged document as genuine without a trial having been held on a charge under Section 471, Indian Penal Code. It appears from the record that the learned Sessions Judge relied upon the provisions of Section 237, Cr. P.C., as authorising him to convict the appellant under Section 471, Indian Penal Code. It, therefore, becomes necessary for us to examine the provisions of Section 237, Cr. P.C., and see whether the procedure adopted by the learned Sessions Judge is legal. Section 237, Cr. P. C, runs as follows: 'If, in the case mentioned in Section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it.' It will be seen that Section 237 is only applicable to cases which properly fall within the scope of Section 236 of the Cr. P.C. which says: 'If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.' We do not think that Section 236 and Section 237 can apply in this case. The charge was abetment of forgery-an offence which is complete when the document was written and signed. But the conviction is for a subsequent act. The forgery purports to be on the 30th March 1924. The date the document was presented for registration and used was the 31st July 1924. The user is, therefore, a distinct and different offence for which the accused is entitled to be separately charged.
5. Before a person is convicted under a particular section of the Indian Penal Code or of any other enactment it is imperative that subject to the provisions of Section 237, Cr. P.C., he should be formally charged with having committed the offence specified in the second and be given an opportunity to defend himself against the specified charge. That has not been done in this case and we are constrained to hold that the conviction' and sentence in the present case cannot stand. The result, therefore, is that the conviction and sentence in this case are set aside and the case is sent back in order that the appellant may be re-tried according to the provisions of the law after framing suitable charges. The appellant will remain on the same bail as he is on now, pending further orders of the Sessions Judge.