ORDER
M.C. Desai, J.
1. The applicants, who are brothers, have been convicted under Section 406, I. P. C. It has been found against them that they went to Hansraj, who is goldsmith, made a false representation to him that their mother wanted a necklace of a certain design for getting the design copied for the wife of Shyamendra applicant, that Hansraj gave them a necklace of the required design which they promised to return in the evening and that subsequently they refused to return it. It was also found that the mother of the applicants had died long ago and that Shyamendra was not married. The applicants denied having made any representation to Hansraj and having taken any necklace from him.
2. It was contended that from the facts proved no offence of Section 406, I. P. C., is made out, that they may at the most be guilty under Section 420, I. P. C., and that their conviction cannot now _be altered to one under Section 420 I. P. C. because they were not charged with it.
3. Section 406 I. P. C. prescribes punishment for criminal breach of trust which is committed when a person being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates it, or dishonestly uses it in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any legal contract, express or implied which he has made touching the discharge of trust. There are two acts, either of which amounts to breach of trust, (1) of dishonestly misappropriating and (2) of dishonestly using in violation of any direction of law or of any legal contract.
Here the applicants by dishonestly refusing to return the necklace and by denying that they had taken it at all have misappropriated it and if they were entrusted with it they would be guilty of criminal breach of trust and no question would arise whether they had made any legal contract touching the discharge of trust. The real question, therefore, is whether the applicants were entrusted with the necklace by Hansraj. It has been held in Lake v. Simmons, (1927) A.C. 487, that in such a case there is no entrastment.
The facts in that case were that E. posing to be a married woman, which she was not, and to be the sister of the fiancee of a certain navy officer, who did not exist, became a customer of L., that one day she told him that her husband wanted two necklaces on approval and L. gave her two and that she criminally misappropriated them. E. was convicted for larceny by a trick on being found that she had dishonest intention from the very beginning. L had insured the necklaces but the insurers were exempted from liability in the case of loss by theft or dishonesty committed by any customer in respect of goods “entrusted” to him by L. L. sought to recover the price of the necklaces from the insurers who denied the liability by contending that the loss was by dishonesty committed by his customer E. in respect of the necklaces entrusted to her by L.
The House of Lords rejected the contention of the insurers and held that when L. gave the necklaces to E. in order that her husband might see them he did not “entrust them” to her. Viscount Haldane observed that ” ‘Entrusted’ is not necessarily a term of law”, that “in its most general significance all it imports is a handing over the possession for some purpose which may not imply the conferring of any proprietary right at all”, that “entrusting may, of course, introduce a bailment, conferring some definite but restricted proprietary right”, that “it is a question, then, of the contract entered into” (at p. 499), that L. thought that he was dealing with a different person, the wife of Vander Borgh and never intended to contract with E., that consequently there was not the agreement of her mind with that of L”. that was required in order to establish any contractual right at all that L. was entirely deceived as to the identity of the person with whom he was transacting and that consequently there was never any contract which could afterwards become voidable by reason of a false representation made in obtaining it.
At page 501 his Lordship pointed out that a mistake as to the party to the contract is fatal to there being any contract at all. He rejected the contention of the insurers that there was a voidable bailment and that some right of property had passed L, to E., by observing that in the case of mere theft the bailment is void ab initio. Viscount Sumner observed that L. let E. take the necklaces in order that Vander Borgh might see them for approval, that she took them as a thief and with no more consent on L.’s part than if she had picked his pocket, that when there was no contract at all there was nothing to avoid, that E. herself had no property or title of any kind as against L., that entrusting cannot mean a bare handing over or physical delivery, that “if there was a trick, which prevented any true consent arising, there could be no entrusting”, that “the natural meaning of ‘Entrusted’ involves that the assured should by some real and conscious volition have imposed on the person, to whom he delivers the goods, -some species of fiduciary duty” fat p. 508) and that the word “entrusted” connotes a definite state of mind of the assured because it is he who entrusted, if entrusting there was.
Lord Atkinson did not find it possible to separate the handing over of the possession of the necklaces from the falsehood which preceded it and the criminal misappropriation which followed it, and observed that the entrustment of goods referred to in the exception does not mean the delivery in all good faith to a customer who has planned to steal them.
4. The above decision was applied by a Full Bench of the Madras High Court in Emperor v. John McIver, AIR 1936 Mad 353. Cornish J. observed at page 359 that a person who tricks another into delivering property to him bears no resemblance to a trustee in the ordinary acceptation of that term and that Section 405 gives no sanction to regard him as a trustee. He relied upon the illustrations to the section as showing that it is intended to cover the case of property honestly obtained by the person entrusted with it and subsequently misappropriating it dishonestly.
In the case, having facts similar to the facts in the present case, the accused was held to be guilty under Section 420 and not under Section 406, I. P. C.
5. A government servant realised money from cultivators falsely representing to them that it was due from them as government dues and misappropriated it; a Bench of this Court held, relying upon the above two cases, that he was guilty under Section 420 and not of criminal breach at trust, vide Surendra Pal Singh v. State, 1957 All LJ 1.47 : (AIR 1957 All 122).
6. I agree that in the present case there was no entrustment because there was no con-tract of entrustment between Hansraj and the applicants, but the reason for my finding is different from that given by the House of Lords in the case of Lake, 1927 AC 487 the facts of which have to be distinguished from those in the present case. Lake himself relied upon the false representation made to him by E. and contended that there was no contract between him and E.; on the other hand it is the applicants who are setting up their own false representation in order to show that there was no contract. It was open to L after learning that the representations made to him by E were false to contend that there was no contract, but the applicants cannot claim the same right because they cannot set up their own fraud to defeat the case of Hansraj.
When Hansraj handed over the necklace to the applicants he did not know that they had no mother, that one of them was not married and that they intended to misappropriate it. He could prosecute them without admitting that they had practised any fraud on him for taking delivery of the necklace; no law compelled him to find out before instituting the prosecution whether they had any dishonest intention to steal at the time of taking delivery of the necklace or not and to prosecute them for cheating if they had it and for criminal breach of trust if they had not.
It would be strange if the law allowed Hamraj, who did not know of the dishonest intention to prosecute them on the basis that there was a contract of entrustment between him and them and then let them take advantage of their own fraud by successfully pleading that there was no contract of entrustment because they had the dishonest intention and they were guilty of cheating only. In the case of Lake 1927 AC 487 the transaction was held to be not a contract in accordance with, and not against, the contention of the aggrieved party.
It would be an entirely different matter it the court were to hold the transaction in the present case to be of cheating and not of criminal breach of trust at the instance of the applicants and against the contention of Hansraj. In the case of John McIver AIR 1936 Mad 353 also it was the case of both the parties that the offence committed by John McIver was that of cheating; the complainant there accepted that there was dishonest intention on the part of John McIver from the very beginning and that consequently there was no contract. Therefore, the facts of that case also should be distinguished from those of the present case. In the case of Surendra Pal Singh 1957 All LJ 147 : (AIR 1957 All 122) this Court simply followed those two cases without noticing the material distinction in the facts.
7. It is not necessary to pursue this matter further because regardless of the question of the applicant’s initial fraud vitiating the contract, I find that there was no contract entered into between Hansraj and the applicants at all and that the transaction amounted to nothing but a loan of the necklace by Hansraj to the applicants. That the applicants wanted to show the necklace to their mother who wanted to get a similar one prepared for the wife of one of them was only a reason given for the applicants’ borrowing it from Hansraj and was not a term or condition of the contract,
That the necklace should be shown to the mother by the applicants was not intended by the parties to be a term of the contract of loan. Hansraj was not at all interested in the mother’s seeing the necklace and was not to gain anything by making it a condition of the loan. All that he was interested in was the return of the necklace; it did not matter to him at all whether the mother had seen it or not. When the parties did not intend to enter into any legal relationship with regard to the applicants’ showing the necklace to their mother, that matter should be completely disregarded and once it is disregarded the transaction would emerge as a transaction of loan.
When a person lends money to another, the borrower often gives a reason for borrowing the money, but the reason thereby does not become a term of the contract and the borrower is not obliged to fulfil the, object for the loan and the lender is not entitled to sue him for a breach of the contract if he does not. The same would be the case here; the applicants were at liberty to return the necklace without showing it to their mother and did not render themselves liable to any damages for not doing so.
The reason is that there was no contract between them and Hansraj about showing the necklace to their mother. Without this being a term of the contract, there was no entrustment; it would be a pure case of loan. Hansraj might have given the necklace to the applicants even if they had not told him why they wanted to borrow it provided they promised to return it in fact within the time considered reasonable by Hansraj and the transaction would not then have amounted to entrustment. It does not amount to entrustment merely because the applicants assigned a reason for their borrowing. It might have been entrustment if the parties intended to enter, into a contract in regard to the carrying out of the object of the borrowing. In the absence of anything to suggest that they intended that the applicants must carry out the object and should be liable to damages if they did not, the transaction remained a -loan and did not become an entrustment.
8. One difference between a trust and a loan is that in the case of a trust the article cannot be returned before the object of the trust is carried out whereas in the case of a loan the article can be returned even before the object of the loan is carried out. In the present case the applicants could return the necklace without showing it to their mother; this means that there was no entrustment of it and that it was only a loan. The applicants committed breach of the contract of a loan because they did not return the necklace, but every breach of a contract is not punishable under Section 406, I. P. C. Hansraj can sue the applicants for breach of the contract by not returning the necklace but the refusal to return it is not punishable under Section 406 when it was not entrusted to them.
9. Since it has been found that the representation made by the applicants that the necklace was to be shown to their mother and that the mother wanted the design to be copied for the wife of Shyamendra is false they have committed the offence of cheating punishable under Section 420 I. P. C. by dishonestly inducing Hansraj to lend the necklace to them. The question is whether their conviction under Section 406 can be altered into one under Section 420.
This question was answered in the negative in the case of Surendra Pal Singh, 1957 All LT 147 : (AIR 1957 All 122) (Supra) on the ground that the offence of Section 420 is not minor in relation to that of Section 406, that consequently Section 238 (2), Cr. P. C., did not apply, that Section 237, Cr. P. C., should not be applied because the accused was tried on the charge of criminal breach of trust and that that he had obtained the money by cheating the cultivators was never considered to be included in the charge.
10. Sections 236, 237 and 238, Cr. P. C., lay down the powers of a trial court like other sections in Ch. XIX; the powers of a court of revision which are the same as the powers of a court of appeal are laid down in Section 423, Cr. P. C. An appellate court has the power of altering a finding and maintaining the sentence. Section 423 itself does not impose any restrictions on the appellate court’s power of altering the finding, but it has been held by some courts that it is governed by Sections 237, 238 etc. Section 236 deals with a case in which it is doubtful which of several offences the facts which can be proved will constitute; in such a case “the accused may be charged with having committed all or any of such offences” or may be “charged in the alternative with hiving committed some one of the said offences.”
What a charge should contain is laid down in Sections 221, 222 and 223, Cr. P. C. ; it consists of the facts or allegations which the prosecution undertakes to prove against the accused and the offence constituted by them in accordance with the law. Thus both facts and the law to be applied to them are included in a charge. A doubt as to which offence is constituted by the facts which can be proved may, therefore, arise on account of a doubt about the facts that may be proved by the prosecution or on account of a doubt as to which law should be applied to the facts’ on being proved, or on account of both. At the time of framing a charge the court may be doubtful about which of several alternative set of facts would be proved by the prosecution or about the law to be applied to the facts if proved.
Either of the doubts is a doubt contemplated by Section 236, which makes no distinction between a doubt about the facts and a doubt about the law. A doubt about the facts that may be proved by the prosecution is as much within the scope of the section as a doubt about the law; illustration (b) is an example of a doubt about the facts that can be proved. Whether the falsity of one statement is proved at the trial or that of the other, there is no doubt that the offence of Section 193, I. P. C., is committed. Whichever statement is proved to have been made falsely, the accused is guilty under Section 193, I. P. C.
The only doubt that arises in the mind of the court at the time of framing a charge is whether the falsity of one statement would be proved by the prosecution or that of the other and it is allowed by Section 236, Cr. P. C., to charge the accused with making both the statements falsely and thereby committing two offences each punishable under Section 193, or one offence punishable under Section 193, or with making either of the statements falsely and thereby being guilty under Section 193, I. P. C. When the Supreme Court observed in Nanak Chand v. State of Punjab, 1955-1, SCR 1201 : ( (S) AIR 1955 SC 274) that Section 236 applies in cases where there is no doubt about the facts which can be proved but a doubt arises as to which of several offences have been committed on the proved facts, it referred to a case in which the charge recites only one set of facts.
Nanak Chand was tried along with others on the charge of Section 302, I. P. C., read with Section 149; at the end of the trial the applicability of Section 149 was not established and the trial court convicted him under Section 302 read with Section 34. I. P. C., and on appeal the High Court holding that even Section 34 did not apply convicted him under Section 302; the Supreme Court held that he could not be convicted under Section 302 when he was charged under Section 302, read with Section 149. Because there was only one set of facts mentioned in the charge it observed that there was no doubt about the facts, that if it was proved that he had caused fatal injuries to the deceased there was no doubt that the offence of murder had been committed and that consequently there was no room for the application of Section 236, Cr. P. C.
Actually there was a doubt about the facts that might be proved by the prosecution, the doubt being about the facts which made Sections 149 and 34 applicable. At the time of framing the charge the trial court thought that the facts to be proved made Section 149 applicable, but after recording the evidence it found that not those facts, but other facts making Section 34 applicable, were proved and consequently convicted Nanak Chand under Section 302 read with Section 34.
Though there had been a doubt about the facts and the trial court should have charged Nanak Chand under Section 302, I. P. C., simpliciter or read with both or either of Sections 149 and 34, after setting out in the charge the fact that he himself had caused the fatal injuries and other facts required for the applicability of the two sections, what it did was to frame a charge under Section 302 read with Section 149 only without mentioning that he had himself caused the fatal injuries in furtherance of a common intention.
The charge, therefore showed that it had no doubt on the question whether the prosecution would prove that he himself caused the fatal injuries or that they were caused by a co-conspirator or by a co-member of the unlawful assembly. It selected only one set of facts for proof by the prosecution, it being that the fatal injuries were caused by a co-member of the unlawful assembly. When there was nothing to indicate that the trial court had entertained any doubt, Section 237 did not apply and Nanak Chand could not be convicted for an offence with which he was not charged.
What one can infer from the charge framed is that in its opinion either the facts stated in it would be proved, in which case Nanak Chand would be guilty under Section 302, I. P. C., or they would not be proved, in which case he would not be guilty of any offence. Since it did not act as if it had entertained a doubt of any kind it could not act under Section 237, and if it could not act under Section 237 the appellate court also could not apply the provisions of Section 237. How exactly the charge should or can be framed in a case governed by Section 236 is not clear from the language used in the section. In the instant case the three possible offences committed by the applicants are, (1) of criminal misappropriation punishable under Section 403, I. P.C., (2) of criminal breach of trust punishable under Section 406, I. P. C., and (3) of cheating punishable under Section 420, I. P. C., and the applicants may be charged in any of the following seven forms. :
1. “You did act A (deceived Hansraj by a false representation that your mother wanted to see a necklace in order to get one prepared for the wife of one of you), act B (induced him to deliver a necklace to you which he would not have done if not deceived), act C (induced him to entrust the necklace to you) and act D (dishonestly misappropriated the necklace by not returning it and denying having obtained it) and thereby committed offences punishable under Sections 403, 406 and 420.”
2. “You did acts A. R. C and D (as above) and thereby committed any of the offences punishable under Sections 403, 406 and 420, I. P. C.”
3. “You did acts A, B, C and D (as above) and thereby committed all or any of the offences punishable under Sections 403, 406 and 420, I. P. C.”
4. “You did acts A, B, C and D (as above) and thereby committed either the offence punishable under Section 403, or the offence punishable under Section 406, or the offence punishable under Section 420, I. P. C.”
5. “You did acts A, B, C and D (as above) and thereby committed an offence punishable under Section 403.”
6. “You did acts A B, G and D (as above) and thereby committed an offence punishable under Section 406.”
7. “You did acts A, B, C and D (as above) and thereby committed an offence punishable under Section 420.”
The words “charge with having committed all or any of such offences” suggest that there should be only one charge and it should be for “all or any” of the offences constituted by the facts recited in it. So form. No. 3 above is the form of the charge contemplated by the first part of Section 236, and not form No. 1 or 2 or 4 or 5 or 6 or 7. Form No. 1 is for committing “all” the offences while form No. 2 is for committing “any” of the offences; the charge should be for “all or any” of the offences. Forms No’s. 5, 6 and 7 are for one particular offence and none of them also is covered by the phrase.
Form No. 4 is covered by the second part of Section 236; it differs from form No. 2 inasmuch as under it conviction can be recorded for only one of the three offences whereas under form No. 2 conviction can be recorded for not only anyone of the offences but also for any two of the offences or even for all. I am, therefore, of the opinion that if a court acts under Section 236 it should frame the charge either in form No. 3 or in form No. 4 and that a charge framed in any of the remaining forms cannot be said to have been framed under Section 236.
11. The distinction between Sections 221, 222 and 223 Cr. P. C. and Section 236 should be borne in mind; they deal with different matters. Sections 221 etc. deal with what should be the form and contents of a charge, while Section 236 deals with what charges can be framed and tried in a case. Sections 221 etc. govern every charge that is framed; whatever charges are framed by a court acting under Section 236 are all governed by them. There can be no charge for an offence which is not supported by a statement of facts, and Section 236 is no exception to this fundamental rule.
Thus form No. 3 of the charge contains a full statement of the facts constituting all the offences mentioned in the charge and so does form 4 of the charge; there could be no charge for the offence of Section 406 if the charge did not contain the statement) regarding entrustment, there could be no charge for the offence of Section 420 without the statements regarding inducement and delivery of property and there could be no charge for the offence of Section 403 without the statement regarding dishonest misappropriation.
12. The necessary facts must be set out in the charge in order to give the accused “notice of the matter with which he is charged”. The idea of charge is borrowed from the Anglo-American law; the charge in our law is a substitute for the indictment in the Anglo-American law. The true test of the sufficiency of an indictment is whether “it contains the elements of the offence intended to be charged, and ‘sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction'”, Sutherland J. in Hagner v. United States of America, (1931) 76 Law Ed 861 : (285 US 427) at page 865.
In B. N. Srikantiah v. State of Mysore AIR 1958 SC 672 at p. 675 Kapur J. stated : “The object of a charge is to warn the accused person of the case he is to answer. It cannot be treated as if it was a part of a ceremonial.” In Berger v. United States, (1934) 79 Law Ed 1314 : (295 US 78) Sutherland J. observed (at page 1318 of the Lawyers’ Edition) that “the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defence and not be taken by surprise by the evidence offered at the trial” and that consequently allegations and proof must correspond.
Though an accused cannot contend that he was prejudiced by not being informed of the law to be applied to the facts to be proved at the trial, Section 221 requires the law and the section of the law against which the offence has been alleged to have been committed to be mentioned in the charge. Though an accused cannot plead ignorance of law he must have notice not only of the facts but also of the law that is sought to be applied to them, because he may have various defences to his being charged with committing a particular offence.
The court may have no jurisdiction to try him for that offence, or his trial for it might have been barred by time or res judicata, or because a necessary condition precedent for his trial, such as a consent of an authority for his trial, did not exist, and the facts alleged against him may constitute several offences including the particular offence against which he has the defence and unless he knows that he is charged with committing that particular offence he might not plead the defence and would be prejudiced if he is subsequently convicted of it in spite of there being a valid defence against it. Except in such a case the accused does not stand in need of any assistance from the court from knowing what offence is constituted by the facts set out in the charge and cannot plead prejudice if the charge does not state what offence is constituted by them.
This is the reason why in the cases governed by Sections 237 and 238(1) and (2), an accused can be convicted of an offence although not charged with it; he had the notice of the facts constituting the offence and his not being warned that he was liable to be convicted of the offence has not caused him any prejudice. The case may be different, if he is prejudiced by not being warned of his liability for conviction for the particular offence and thereby being deprived of an apportunity for raising an available defence against his conviction for it. That would be an exceptional case; in a case that usually comes before courts there would be no prejudice.
13. If a court at the time of framing a charge entertains a doubt about the facts that can be proved by the prosecution, it should recite in the charge all the possible or alternative facts which can be proved and charge the accused with committing “all or any of the offences” constituted by them. In other words the charge should be in form No. 3. It should frame a charge in form No. 4 only if it finds that the accused can be convicted for only one of the possible offences and not for two or more of them, as for instance, when the offences are mutually exclusive.
If the facts are such that he can be convicted of two or more of the possible offences, he should be charged with committing “all or any of them”. If the facts that can be proved by the prosecution are certain but it entertains a doubt about the law to be applied to them, it should after stating the facts charge the accuser with committing all or any of the offences constituted by the facts (that is in form No. 3) or with committing any one of the offences constituted by them (that is, in form No. 4), depending upon whether it considers that he can be convicted for two or more of the offences constituted by the same facts or for only one of them.
14. Sections 237 and 238, Cr. P. C., deal with conviction. If in a case governed by Section 236 the accused is charged with one offence and it appears in evidence that he committed a different offence for which he night have been charged under it, he may be convicted of the offence which he is proved to have committed, although not charged with it; this is the purport of Section 237. A case is governed by Section 236 only if at the time of framing the charge the court had a doubt (whether about the facts or about the law).
If it had no doubt, it cannot avail itself of the provisions of Section 237 at the time of conviction. Section 237 allows conviction for an offence with which the accused was not charged at all. “Not charged with” means that the particular offence is not mentioned in the charge though the facts constituting it are mentioned. If a court acts under Section 236 it must frame a charge for all or any of the possible offences and the conviction will always be for an offence with which the accused was charged. Section 237 is intended for a case which was governed by Section 236 but in which the court has not acted as permitted by it.
If in a case of doubt a court instead of framing a charge in form No. 3 or 4 or even in form No. 1 or 2, frames a charge in form No. 5, 6 or 7, Section 237 allows it to record conviction for the offence proved though the accused was not charged with it. If an accused is charged in form No. 5 and acts A and B only are proved, the court can convict the accused under Section 420 though not charged with; since he had the notice of the necessary facts to sustain the charge, he cannot plead prejudice on account of not being warned that he was liable to be convicted under Section 420. He is supposed to know the law and should -have known that acts A and B, if proved, would constitute the offence of Section 420.
Similarly if he was charged in form No. 6 and only acts B and D were proved he can be convicted under Section 403, and if he was charged in form No. 7 and only acts C and D were proved he can be convicted under Section 406. Section 237 would apply whether the doubt was about the facts or about the law. If it was doubtful which of two possible laws should be applied to the given facts, it should have charged the accused with both or either of the possible offences, or should have charged him with committing one offence or the other in the alternative; but if it failed to do so and charged him with committing only one of the two offences. Section 237 would apply to permit the court to convict him of the other offence.
15. If the court had no doubt at the time of framing the charge, it is not a case mentioned in Section 236 and Section 237 cannot be availed of at the time of conviction. The court can, however, convict the accused for any offence constituted by the facts mentioned in the charge even though not charged with it. It can invoke the aid of Section 225 and ignore the error in stating the offence in the charge or the omission to state the offence of which he is found guilty.
16. Section 238(1) and (2) permits an accused to be convicted of a minor offence even though not charged with it. If an accused is charged for an offence on the basis of a set of facts and the prosecution proves only some of them, which themselves constitute a complete offence, Sub-section (1) permits the court to convict him of it. If the prosecution proves the set of facts and the accused proves some facts which reduce the offence constituted by the set of facts to a minor offence, Sub-section (2) permits the court to convict him of it. Had the court at the time of framing the charge a doubt about the facts which can be proved by the prosecution and yet framed a charge for the offence constituted by the whole set of facts, it could by availing itself of the provisions of Section 237 convict the accused of the minor offence.
The Sub-section (1), seems to have been enacted to apply in a case in which the court had no doubt at
the time of framing the charge as to what facts would be proved by the prosecution and, therefore. Section 237 would not be applicable. An accused can be convicted of an offence with which he was not charged only if it is a minor offence in relation to the offence with which he was charged or the court had at the time of charging him entertained a doubt as to which offence would be constituted by the facts to be proved during the trial and could have acted, but did not act, under Section 236. Sub-section (2), is made to provide for a case not governed by Section 236 and by Section 238(1), as for example a case in which an accused proves a general exception such as a grave and sudden provocation which reduces the offence with which he was charged. Convicting an accused for an attempt to commit an offence though not charged with it is permitted by Sub-section (2) (a), if he was charged with committing the offence itself.
17. So far I have dealt with the powers of the trial court. An appellate court’s powers are enumerated in Section 423, Cr. P. C., and one of them, is to alter the finding. I am not prepared to dissent from the view that this power is governed by the provisions of Sections 237 and 238. Section 232 empowers it to order retrial if the trial court had convicted the accused of an offence not charged with and he had been misled in his defence by the absence of a charge.
This provision does not authorise an appellate court to convict the appellant of an offence not charged with except in a case governed by Sections 237 and 238. Section 535, Cr. P. C. also provides for a case in which the trial court convicted without a charge. The appellate court is forbidden to quash the finding unless in its opinion a failure of justice had in fact been occasioned by the absence of a charge. If a failure of justice had been occasioned the appellate court should direct retrial under Sections 232 and 535.
18. The powers of a court of revision are those of a court of appeal.
19. In the present case the following charge was framed against the applicants :
"That you on ....... were entrusted with a necklace ....... for getting the design approved by the complainant ....... which you dishonestly misappropriated and did not return ..... and thereby committed an offence punishable under Section 406."
This was obviously not a charge framed under. Section 236 nor a charge framed in a case mentioned in Section 236. The charge is not in any of the forms Nos. 1 to 7, which are all the possible forms in which a charge can be framed in a case mentioned in Section 236. There is absolutely nothing in the charge to suggest that the court had any doubt either about the facts that might be proved by the prosecution or about the law to be applied to the facts mentioned in the charge. It was a charge simply for the offence of Section 406, I. P. C., and only the facts constituting that offence were recited in it. Nothing was mentioned about the facts constituting the offence of Section 420.
The offence of Section 403 is a minor offence in comparison to that of Section 406 inasmuch as it is constituted by some of the facts mentioned in the charge. No entrustment is proved and, therefore, no offence under Section 406 is made out against the applicants, but it is proved that they obtained delivery of the necklace and that they dishonestly misappropriated it. They, are, therefore, guilty under Section 403, I. P. C., and can be convicted of it under Section 238(1). It has also been proved that they are guilty of Section 420 by dishonestly inducing Hansraj by misrepresentations to deliver the necklace to them, but neither were the necessary facts set out in the charge nor were they they charged with Section 420.
The trial court itself could not convict them under Section 420 because Section 237 did not apply
and the offence of Section 420 is not minor in relation to that of Section 406. Only the facts about the entrustment and the misappropriation were stated in the charge; but if on the same facts they had been charged with the offences of Sections 403 and 420, the conviction for the offence of Section 406 recorded by the trial court could have been altered to one under Section 420 under Section 225, if it was found that the omission to state the fact about the inducement by misrepresentations had not caused any prejudice to them. If the fact about the inducement by misrepresentations also had been mentioned in the charge, though they were charged under Section 406 only, it could be said to be a case mentioned in Section 236 and Section 237 could have been availed of for altering the conviction from that under Section 406 to that under Section 420.
20. I find that the trial court itself could not convict the applicants under Section 420. They were not charged with that offence. Section 238 admittedly did not apply. Section 237 did not apply because this was not a case mentioned in Section 236 as the trial court had no doubt at the time of framing the charge and it had selected only one set of facts and intended to apply only one law to them on being proved. Section 225 also could not apply because it could not condone the absence of both the offence and the facts from the charge.
Really after the charge it should have rejected all evidence barring that required to prove the facts set out in the charge because it would be all irrelevant and there would have been no possibility of the prosecution’s proving any other set of facts. Either the facts set out in the charge would have been proved, in which case the applicants would be convicted under Section 406, IPC., or they would not have been proved, in which case they would have been acquitted, or only some of them would have been proved, in which” case they would have been convicted of the minor offence constituted by the proved facts.
If the trial court itself could not convict them under Section 420 an appellate court or a court of revision cannot alter the finding and convict them of Section 420. It cannot avail itself of the provisions of Section 237 if the trial court itself could not do so. It has no power to hold that the case was one mentioned in Section 236 if the trial court had no doubt at the time of framing the charge; as I pointed out in Mangal Singh v. Rex, AIR 1949 All 599 what is relevant for the purpose of applying Section 237 is not whether the appellate court would have entertained a doubt if it had been framing a charge but whether the trial court had a doubt and it is essentially a question of fact.
If the trial court had no doubt, the appellate court cannot avail itself of the provisions of Section 237. There must be something on the record to show that the trial court had a doubt; this fact cannot be assumed by an appellate court. Even though the record contains no indication of the existence of a doubt the trial court might at the time of convicting think that it had a doubt and avail itself of the provisions of Section 237, because the question is whether it itself had a doubt and it is in the best position to answer it correctly; the same, however, cannot be said of the appellate court, which cannot know the mind of the trial court except through the record.
Conviction for an offence with which the accused is not charged at all is an exception to the general rule and Sections 225, 237, and 238, which contain the exceptions should be strictly construed. Section 237 should not be so interpreted as to include almost every case; conviction for an offence not charged with should not be justified every time on the ground that it is a case of doubt.
One often comes across the dictum that conviction for an offence not charged with can be recorded if there is evidence; I may respectfully point out that this condition has no contents. Nobody ever thinks of recording conviction for an offence even though it is not proved; the question whether there can be conviction without a charge will arise only if there is sufficient proof of the offence. If the offence itself is not proved the question whether the accused was charged with it or not does simply not arise. For convicting for an offence without a charge there must be an authority other than that the offence is proved and the authority must be found in Sections 225, 237 and 238, which are the only sections that can supply it.
To say that conviction for an offence not charged with can be recorded (if there is evidence to prove the offence) is quite the reverse of the law that there can be no conviction for an offence without a charge for it. The law that there can be no conviction without a charge refers to conviction supported by evidence. It is rare that the evidence to sustain conviction for an offence not charged with comes on the record for the first time after the accused has been charged; it is rare because it is illegal. Once a charge is framed the evidence produced subsequently by the prosecution must be relevant to it and all evidence not relevant to the charge framed should not be received by the court.
Therefore, when an accused is convicted of an offence there must have been on the record at the time when he was charged all evidence to justify the conviction. It would have been futile to insist upon a charge for a particular offence if the accused were liable to be convicted for it without being charged with it on the ground that there was evidence to justify the conviction. When it is said that conviction for an offence not charged with can be maintained if he could have been charged with that offence under Section 236, the liability to be charged with the offence must be deemed to have been derived not from the existence of evidence on the record but from the necessary facts having been recited in the charge framed for another offence.
When a court frames a charge under Section 236, it has a doubt about the facts, all the alternative facts and the respective offences constituted by them should be mentioned in the. charge and if it has a doubt about the law to be applied to the facts stated in the charge, the accused should be charged with all the alternative offences that are constituted by them. According to the interpretation that I place upon Sections 236 and 237 there can be no conviction for an offence not charged with unless the facts, which constitute the offence, are mentioned in the charge. Section 225 deals also with a case in which there is an omission to state the offence though the facts constituting it are stated.
It may be contended that the interpretation placed on Sections 236 and 237 makes the provisions of Section 237 redundant and my reply would be that they are not quite redundant. Section 225 permits conviction without the offence being stated in the charge only if there has been no prejudice to the accused; Section 237 allows it regardless of the question of prejudice to the accused. It may be that whether prejudice to the accused is a relevant consideration or not is made dependant upon the question whether the trial court had a doubt at the
time of framing the charge or not; however, I do not see any serious anomaly in this.
Nothing that I have said above is against illustration (a) to Section 236. When it refers to charging the accused with theft, receiving stolen property etc. it means that the accused is charged under Sections 379, 411, I. P. C., etc. and the facts constituting those offences are recited in the charge. The first charge given in the illustration is in form No. 1 and not in form No. 3; I am inclined to the view that to this extent the illustration is not quite correct. The other charge mentioned in the illustration is in form No. 4.
21. I do not accept the contention of the applicants that they are not guilty even under section 403, I. P. C., because they had a dishonest intention at the time when they took possession of the necklace from Hansraj. As far as Hansraj is concerned the possession of the applicants was valid and they afterwards misappropriated it. If they had no dishonest intention at the time of taking possession, they would undoubtedly be guilty under Section 403; they did not cease to be so guilty merely because they had a dishonest intention at that moment. Even if they had a dishonest intention at the moment of taking possession, they could return the necklace; they were not bound to misappropriate it.
When they misappropriated it they certainly committed some additional offence and it could not be any other than that punishable under Section 403, I. P. C. I do not accept the argument that criminal misappropriation cannot be committed if the accused had a dishonest intention at the time of taking possession of the article. The complaint has the choice; if he thinks that he can make out a case of dishonest intention while taking delivery of the article he can charge the accused with cheating; otherwise he is entitled to charge him with criminal misappropriation.
The offence of criminal misappropriation made out by the prosecution can be reduced to a minor offence on account of some fact proved by the accused in defence but I doubt if it can change its nature altogether. If the prosecution proves a case of Section 403, I. P. C., the accused by proving that he had a dishonest intention at the time of taking deli-very of the article cannot change the nature of the offence to that of cheating. The Criminal Procedure Code does not contemplate any such change in the nature of the offence committed by an accused; if it did, it would have consistently with dictates of justice allowed him to be convicted for the offence made out even though not charged with it. He could not plead that he was prejudiced by his own act of proving that he committed the offence, and not that charged with I, therefore, hold that the applicants are guilty under Section 403, I. P. C., and that I can alter their conviction.
22. The trial court had no justification whatsoever to impose a light punishment upon the applicants simply because they are students. The offence committed by them was serious and a fine of Rs. 100/- is a wholly inadequate punishment. The matter, however, is more than 3 1/2 years old and I do not propose either to enhance the sentence or to order their retrial under Section 420, I. P. C., in order that they may be adequately punished.
23. The applicants’ conviction is altered from that under Section 406 to one under Section 403, the sentence is maintained and the application is dismissed.