CHAINSUKHLAL PUNAMCHAND MEHER Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) MY brother Tulzapurkar has, in this Criminal Revision Application, referred to a Division Bench the question as to whether in a case falling under the provisions of Sections 236 and 237 of the Criminal Procedure Code, it is permissible for a criminal 'Court to alter the conviction from an offence which is of lesser gravity to an offence of greater gravity, as the question is one which is not directly covered by authority.

(2.) THE facts of the case are that the petitioner (accused) was working as a medical officer attached to the State Reserve Police Camp Dispensary at Dhulia, and while he was so attached, he was alleged to have committed theft of certain medicines from the store -room of the dispensary of that camp. It appeared from the evidence led in the case that there were two sets of keys of the cupboards lying in the store -room as well as the dispensary from out of which these medicines were alleged to have been removed by the accused, one set remaining with the accused and the other with the compounder one Joshi. It also appeared from the evidence in the case that the accused was the principal man in charge of the dispensary. The trial magistrate before whom the accused was prosecuted on a charge framed under Section 381 of the Indian Penal Code, convicted the accused of that offence, but, on appeal to the Court of Session, the Sessions Judge, Dhulia, took the view that since the medicines were in the possession of the accused himself, he could not be convicted of the offence of theft which required that the present accused should have removed the article in question out of the possession of some other person without his consent. The learned Sessions Judge, however, took the view that in view of the provisions of Section 237 of the Code of Criminal Procedure it was open to him to convict the accused of the offence of criminal breach of trust by a public servant, and he accordingly changed the conviction of the accused from one under Section 381 of the Indian Penal Code to one under Section 409 of the Indian Penal Code, though he maintained the same sentence. Against that conviction and sentence, the accused has applied to this Court in revision. When the matter came up before my brother Tulzapurkar on September 17, 1968, he, as well as the learned advocates appearing before him, felt that it would be better if this point is decided once and for all by a Division Bench. My brother Tulzapurkar, therefore, referred to a Division Bench the question stated by me at the very beginning of this judgment. That is how the matter has come before us to -day.

(3.) IN my opinion, a section in a statute cannot be limited by any general or abstract principle of jurisprudence, however salutary, if the plain language of the section does not incorporate any such limitation. A limitation may, however, have to be read into a section of a statute by reason of another section of the same statute, or of some other statute, if the language of that statutory provision is wide enough to make it applicable to the section which is to be construed. In my opinion, Section 238 does not contain any general principle, but applies to a particular restricted class of offences which are independent of Sections 236 and 237 in so far as there may be cases governed by Section 238 to which Sections 236 and 237 would be inapplicable, and vice versa. There is, in my opinion, no reason whatsoever for reading into Section 237 a limitation that is to be found in Section 238 which deals with a totally different situation. Mr. Kotwal has argued that in so far as it is possible to conceive of a case falling under Section 238 which would also be covered by Section 237 read with Section 236, Section 237 must be read subject to the limitation which is to be found in Section 238, as the accused would otherwise be deprived of the benefit of that limitation by the Court resorting to the provisions of Section 237 and convicting him even of a higher offence. As observed by Bose J. in his judgment in the case of W. Slaney v. State of M.P. : 1956CriLJ291 , Para 35 the Code of Criminal Procedure does deal with the same subject -matter under different heads, and there is no doubt some over -lapping as far as its provisions are concerned. That, however, is, in my opinion, no ground for limiting the application of Section 237 only to 'minor offences' in the same manner in which the Legislature has limited the application of Section 238 of that Code. As stated by Maxwell on the Interpretation of Statutes (11th edn.), p. 265, in the case of penal laws, even if the Court comes to the conclusion that certain words have been accidentally omitted, they can be supplied by implication only if existing words in the statute would otherwise be deprived of all meaning. There can be no doubt that, even without reading the words which Mr. Kotwal has urged upon us to read into Section 237, the words of that section would have a clear and unambiguous waning as far as the situation to which they are intended to apply Having considered the question, apart from authority, I will now turn to the authorities that were cited before us by Mr. Chitnis on behalf of the State. The first decision which was cited by him was the decision of the Supreme Court in the case of Nanak Chand v. The State of Punjab. The question which arose before the Supreme Court in that case was whether the appellant, who had been charged inter alia with the offence under Section 302 read with Section 149 of the Indian Penal Code, could be convicted of the substantive offence under Section 302 of the Indian Penal Code. The conclusion reached was that prejudice was disclosed and an acquittal was, therefore, ordered. Section 236 of the Criminal Procedure Code was sought to be invoked before the Supreme Court, but in repelling that contention it was stated (at p. 1212) that the provisions of Section 236 can apply only in cases where there is no doubt about the facts which can be proved, but a doubt arises as to which of several offences had been committed on the proved facts, in which case any number of charges can be framed and tried, or alternative charges can be framed. It was, however, further observed in the judgment that, in those circumstances, if there be an omission to frame a charge, then under Section 237, a conviction could be arrived at on the evidence although no charge had been framed. As there was no doubt in the case before the Supreme Court about the facts and about the evidence, it was held that there was no room for the application of Section 236 of the Code of Criminal Procedure. The next decision which was cited by Mr. Chitnis was another decision of the Supreme Court in the case of W. Slaney v. State of M. P. already referred to above in another context. The facts of that case were that the accused along with one other person, was charged under Section 302 read with Section 34 of the Indian Penal Code, but there was no separate alternative charge of the substantive offence under Section 302 of the Indian Penal Code against the accused. His co -accused was acquitted for absence of evidence against him, but the appellant -accused was convicted of the substantive offence of murder under Section 302 of the Indian Penal Code. It was held by the Supreme Court that, having regard to the nature of the charge framed, the omission to frame a separate charge under Section 302 of the Indian Penal Code against the convicted accused was only a curable irregularity, and, on the facts of the case, it was held that there was no prejudice to the accused by way of failure of justice and the legality of the conviction was, therefore, not affected. The learned judges delivered three separate judgments. It was stated in the judgment delivered by Bose J. on behalf of himself and S. E. Das, Actg. C. J. (paras. 30 and 31) that Sections 237 and 238 are not part of the normal procedure, and Sections 225 to 238, 535 and 537 apply with equal force to every kind of departure from the normal rule laid down in Section 233 that there must be a separate charge for each offence, that Section 237 is only a corollary to Section 236, and that 'all these sections are governed by the over -riding rule about prejudice mentioned, in one form or another in sections 225, 226, 227, 228, 535 and 537. We think it would be monstrous to hold that a conviction cannot be set aside even when gross prejudice is proved in cases covered by Section 237 just because it does not speak of prejudice. We can envisage cases where there would be grave prejudice under that section as clearly as we can see cases where there would be none under the others.' It was further stated in the judgment of Bose J. (para. 40) that the words 'by the absence of a charge' in Section 232(1) cannot mean 'where there is a charge, but none for the offence of which the accused is convicted,' for that would necessitate reading into that section words that are not there. It would follow that Section 232(1) cannot apply to cases under Section 237 of that Code. Bose J. also considered the earlier decision of the Supreme Court in Nanak Chand's case cited above (paras. 53 -55), and held that the same was based on the conclusion which the Supreme Court reached '' on the facts,'' after a careful and lengthy investigation in that case, that prejudice was disclosed. None of the above statements in the judgment of Bose J. h(sic) dissented from in the judgments of the other judges. In the case of G.D. Sharma v. State of U.P. [1960] A.I.R. S.C. 400 the charge against the appellants was under Section 467 of the Indian Penal Code but the evidence showed that it -was possible to take the view that a ease under Section 477 A of the Indian Penal Code could be made out and the High Court, therefore, directed a retrial with the framing of a charge under each of those sections. In allowing the appeal and setting aside the order of the High Court, the Supreme Court observed (para. 11) that the provisions of Sections 236 and 237 are clear enough to enable a Court to convict an accused person even of an offence with which he had not been charged and that the High Court erred in ordering a retrial of the appellants and should have decided, on the evidence before it; whether any offence had been committed by the appellants. Another decision of the Supreme Court in the case of the State of Andh. Pra. v. Ganeshwara Rao : [1964]3SCR297 , was also cited in the course of the argument before us but I do not think it necessary to discuss the same as it is concerned mainly with the question of the impact of Sections 233 to 236 on Section 239. The last decision of the Supreme Court to which I will refer is the decision in the case of Sunil Kumar v. State of W.B. A.I.R. [1905] S.C. 706. The High Court had in that case altered the conviction of the appellant from that under Section 409 of the Indian Penal Code to one under Section 420, and the Supreme Court in dismissing the appeal held (para. 15) that all possible offences could have been charged in view of Section 236 of the 'Criminal Procedure Code as it could reasonably be said that it was doubtful as to which of the offences the facts which could be ultimately proved would constitute, and that, in accordance with the provisions of Section 237 of that Code, the appellate Court could, in law, convict the appellant of the offence under Section 420 of the Indian Penal Code instead of the offence under Section 409 of the Indian Penal Code which was founded on the facts proved at the hearing. In that case also, the earlier decision of the Supreme Court in Nanak Chand's case cited above was discussed (para. 19). It, was ultimately held (para. 27), on the facts of the case, that as the appellant could not be said to be prejudiced in his conviction under Section 420 of the Indian Penal Code on account of the non -framing of the charge and the consequent non -trial under Section 420 of the Indian Penal Code, his conviction was justified, as the framing of a charge under Section 420 of the Penal Code was not essential in view of the provisions of Section 237 of the Criminal Procedure Code. It was further observed that no question of irregularity in the trial arose in the case at all. These are all the decisions of the Supreme Court on the point which have been cited before us,