JANANADA CHARAN GHATTAK Vs. EMPEROR

JUDGEMENT

(1.) The only question of law argued before us on behalf of the petititioner is that his conviction for abetment of the substantive offence, though he was not charged with it originally, is erroneous in law. Three persons were tried on a charge under Section 420, I.P.C. The petitioner is the third accused and he is said to have taken part in carrying out the purpose of the cheating. They were further charged under Section 120-B for conspiracy. The facts are that one Alekjan Bibi was induced to sell her property to accused 1 Wazaddi under circumstances which made it a clear case of cheating. She was told that she was to execute a kabala in favour of someone else for Rs. 300. As a matter of fact that kabala was written in favour of Wazaddi to the knowledge of the petitioner and a bundle of money purporting to be Rs. 300 was made over to Alekjan Bibi. It was subsequently found to contain small coins and pice worth Rs. 5. On these facts as elaborated in the evidence the accused were charged under Secs.120-B and 420, I.P.C. The petitioner was convicted under Section 420 read with Section 114, I.P.C. and sentenced to three months rigorous imprisonment, though there was no charges framed under Section 114. It is argued that there being no such charge against the accused he could not be convicted under that section. There is some divergence of opinion on the question as to whether a person having been charged with a substantive offence can be convicted for abetment thereof. It is not necessary to refer to all the the various cases that have been cited before us bearing upon this point, for I think the right view of the question raised before us is that it cannot be definitely laid down that a person having been charged with a substantive offence cannot be convicted for abetment thereof. Every case depends upon its own facts and if the facts justify the conviction for abetment, though the person was charged with the commission of the offence itself, there is no bar in law to such conviction. The principle is what was laid down long ago in Reg V/s. Chand Nur 11 B.H.C.R. 240 where it is said that if evidence adduced in support of the charge for the substantive offence does not give notice to the accused of all the facts which would constitute abetment he cannot be convicted of abetment. This question was considered in the case of Indar Chand V/s. Emperor [1915] 42 Cal. 1094. Woodroffe, J., who was third Judge, to whom the case was referred on account of difference of opinion between two Judges observed at p. 1133: I am not prepared to hold as a universal rule that in no case can there be a conviction for abetment where the charge is only for the substantive offence.

(2.) The same view has been expressed in the unreported case of the Emperor V/s. Kadira by C.C. Ghose, J., in these words: It is true that there was no charge of abetment of murder against the present appellant before the jury but in my opinion it cannot be laid down as a universal rule that in no circumstances whatsoever where there is a charge for a substantive offence and there is no charge of abetment of that offence can the person so charged with substantive offence be convicted of abetment of that offence.

(3.) The same view has been expressed in Emperor V/s. Mohabir Prosad and Dibakar v Saktidhar Kaviraj . A great deal of support for this view is to be obtained from the decision of the Judicial Committee in Reg. V/s. Emperor where the accused was charged under Section 302, I.P.C. but convicted under Section 201, I.P.C., for destroying the evidence for the commission of that offence. Their Lordships remarked: A man may be convicted of an offence although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made.