TULSI TOLINI Vs. EMPEROR

JUDGEMENT

(1.) The petitioner, Tulsi Tolim, has been convicted of an offence punishable under Section 54A of Act IV of 1866 Calcutta Police Act. That section runs as follows : "Whoever has in his possession, or conveys in any manner, or offers for sale or pawn, anything which there is reason to believe to have been stolen or fraudulently obtained, shall, if he fails to account for such possession or act to the satisfaction of the Magistrate be liable to fine, etc." At the trial the only charge framed against her was that she committed theft in respect of gold and silver ornaments, cloths and cash Rs. 13,410 in G.C. notes, sovereigns and coins valued in all about Rs. 18,000 from the room of one Khelwan Ahir and thereby committed an offence punishable under Section 380, Indian Penal Code. This rule has been granted on two grounds. The first relates to the legality of the conviction under Section 54A of the Calcutta Police Act, on the charge framed, the other, to the legality of the conviction under this section on the facts found.

(2.) As regards the first ground, it is contended on behalf of the Crown that Secs.237 and 238, Criminal Procedure Code, render the conviction legal. We are of opinion the provisions of Section 237, Criminal Procedure Code, alone are sufficient and it is, therefore, unnecessary to consider whether the offence punishable under Section 54A of the Calcutta Police Act is a minor offence to that of retaining stolen property, punishable under Section 411, Indian Penal Code. Nor need we consider whether the double operation of Secs.237 and 238 can, be invoked to support the contention that, since Section 237 would render an accused liable to conviction under Section 411 on a charge of theft, he could also on such a charge be convicted of an offence that is minor to one punishable under Section 411, Indian Penal Code.

(3.) Clause (1), Section 237, Criminal Procedure Code, 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." The Illustration to this section is, "A is charged with theft. It appears that he committed the offence of criminal breach of trust, or that of receiving stolen goods." He may be convicted of criminal breach of trust, or of receiving stolen goods (as the case may be) though he was not charged with such offence." It thus appears that the legality of a conviction for an offence not charged depends, when reliance is placed on Section 237, on whether the different offence of which the accused has been convicted is one for which he might have been charged under the provisions of Section 236, Criminal Procedure Code, which is in the following terms. "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." In the present case the prosecution based their case on a series of acts of a suspicious nature and asked the Court to draw an inference from those acts that the accused had herself committed theft of the articles mentioned in the charge from the room of Khelwan Ahir. But if from the facts proved in support of this charge of theft it was doubtful whether the Court could draw this inference and the Court might draw the inference that an offence punishable under Section 54A of the Calcutta Police Act had been committed, the accused might have been charged at the trial with both, those offences under Section 236 and this conviction would be in accordance with the provisions of Section 237, Criminal Procedure Code.