AMARJIT SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) A complaint under sections 406, 416, 420, 120 -B and 109 Indian Penal Code (hereinafter referred to as the Code), was filed by Gurbachan Singh against the present petitioner Amarjit Singh and four others, in the Court of Judicial Magistrate, Phillaur. The Magistrate. on consideration of the preliminary evidence came to the conclusion that prima facie only a case under section 406 of the Code against Mohan Singh son of Dhanna Singh and under section 120 -B of the Code against Amarjit Singh petitioner and Kulbir Singh and Mohan Singh son of Bachan Singh accused had been made out. Charges were framed by the trial Court accordingly. After recording evidence of the parties, the trial Magistrate convicted Mohan Singh son of Dhanna Singh under section 406 of the Code. and Amarjit Singh petitioner and Kulbir Singh and Mohan Singh son of Bachan Singh accused under section 120 -B of the Code. Various sentences were imposed upon them. An appeal was filed against this judgment by Mohan Singh, son of Dhanna Singh, Amarjit. Singh and Mohan Singh son of Bachan Singh, which was heard by the Additional Sessions Judge, Jullundur. The learned appellate Court found that the charges under sections 406 and 120 -B of the Code were not established against the accused. In pursuance of this finding the order of conviction was set aside. The appellate Court, however, remanded the case to the trial -court for retrial of the accused after framing charges against them under sections 416, 420, 120 -B and 109 of the Code. It is against this order of remand that the petitioner Amarjit Singh has come up in revision.

(2.) THE powers of the appellate Court are described in section 386 of the Code of Criminal Procedure. Clause (b) of section 386 lays down as under : "386 Powers of Appellate Court : -After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering. dismiss the appeal, or may (a) ......................... (b) in an appeal from a conviction - (i) reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a Court of competent jurisdiction subordinate to such appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent of the sentence, but not so as to enhance the same,.......... From these provisions it is amply clear that the appellate Court while deciding an appeal from conviction is not empowered to remand the case for framing charges under such provisions of the Code which were not the subject matter of the order under appeal. The learned counsel appearing for the complainant respondent fairly conceded that the order of remand being without jurisdiction is not sustainable. The learned counsel, however, contended that instead of remanding the case appellate Court should have itself altered the conviction under sections 416. 420, 120 -B and 109 of the Code and should have imposed appropriate sentences upon the accused. This contention is devoid of merit. The accused had been tried under sections 406 and 120.B of the Code. Although the complaint filed by Gurbachan Singh was also under section 420 read with section 416 of the Code. but the trial Magistrate did not frame charges against the accused under these sections. The order of framing the charge was not challenged. In these circumstances, it was not open to the appellate Court to have remanded the case to the trial Magistrate for framing charge against the accused under sections 416 and 420. of the Code Section 386, Code of Criminal Procedure, did not authorise the appellate Court to do so. If an accused has been convicted for a major offence, the appellate Court can alter the conviction to a minor offence in the same category For example, if the trial Magistrate has convicted an accused under section 326 of the Code the appellate Court is empowered to alter the conviction to one under section 324 of the Code which is a lesser offence in the same category. However, the offences under sections 406 and 420 of the Code are independent of each other and it cannot be said that the offence under section 420 is a lesser offence vis -a -vis section 406. In order to convict an accused under Section 406 of the Code entrustment of property and its misappropriation are to he established. The ingredient of an offence under section 420 of the Code are quite different. To prove the commission of an offence under this section, cheating by pretending to be some person other than the real person and thereby dishonestly inducing the person deceived to deliver any property to him has to be proved. Mainfestly, therefore, the ingredients of section 406 of the Code are quite different from the ingredients of section 420 of the Code. It becomes evident that by virtue of section 386 Code of Criminal Procedure, the appellate Court cannot convert conviction under section 406 into one under section 420 of the Code. In this view of the matter the appellate Court having come to the conclusion that a case under section 406 of the Code had not been established against the accused. It had no option but to acquit a latter. It had no jurisdiction to remand the case for retrial after framing charges under sections 4 16, 420, 120 -B and 109 of the Code.

(3.) FOR the aforesaid reasons. This revision is allowed and the order of remand passed in the impugned judgment by the appellate Court is set aside.