KHALLE FODALIA Vs. HARNARAYAN SUNDERLAL

JUDGEMENT

(1.) HAR Narayan lodged a complaint before the Sub-Divisional Magistrate, Moongawali 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 :