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Report No. 41

19.11. New su.-section recommended.-

After considering various alternatives we recommend the insertion of a new su.-section in section 235 as follows.-

"(1) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in su.-section (2) of section 222 or in su.-section (1) of section 234, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence."

19.12. Section 23.-unclear wording.-

Section 236 cannot be said to be very clearly or expressively worded. The two illustrations that are appended to it would seem to be essential for a proper understanding of what the section means and what types of cases are intended to be covered by it. In fact, the second illustration is hardly covered by the words of the section inasmuch as when a person makes on oath two contradictory statements, and the prosecution cannot prove which of them is false, he does not commit several offences but only one. The illustration is, for practical purposes, a distinct rule enabling the Court to frame a charge of intentionally giving false evidence without specifying which one of two or more particular statements the accused either knew or believed to be false, or did not believe to be true. This is referred to in the illustration as charging in the alternative.

19.13. Judicial interpretations of the section.-

The section refers to a "series of acts being of such a nature that it is doubtful which of several offences the facts which can be proved will constitute." In a Calcutta case,1 the judge observe.-

"The confusion which has arisen about the interpretation of section 236 is due to the way in which it is worded. What is really meant seems to be if a single act or series of acts is of such a nature that it is doubtful which of several offences has been committed if the facts as alleged by the prosecution are established, the accused may be charged with the commission of all or any of such offences. The facts which can be proved are only ascertained after the completion of the trial and therefore the charge cannot be made to depend on them; moreover in the terms of the section, the doubt must arise from the nature of the act or series of acts, and the doubt would arise because of the inferences which might be drawn from those acts."

This view does not appear to be correct. It was dissented from by the Bombay High Court in a case2 where the prosecution was in doubt as to the age of a girl who was alleged to have been kidnapped or abducted. The Court observe.-

"The condition on which the section comes into operation must be complied with, and there must be a single act or series of acts of a certain nature, and the nature must raise a doubt about which of several offences the facts which can be proved, will constitute. But we think that doubt may include a doubt as to what exact facts within the ambit of the series of acts postulated can be proved. At the time the charge is framed, the prosecution can never know exactly what facts they will succeed in establishing. The most promising witness may breakdown in cros.-examination; and in our view the prosecution are entitled to say:

'If we prove certain of our alleged facts, then such and such an offence will be committed; but if we prove other of such facts, then it will be another offence', and tO charge the offences in the alternative. That is the exact case here, the prosecution being in doubt whether they could prove that the girl was under sixteen. We think illustration (a) to section 236 shows that the Calcutta view of the section is too narrow."

This is accepted as the correct interpretation of the section. To put it in an amplified form, if the offending act or series of acts alleged in the case is of such a nature that it may, depending on the facts that can be proved, at the trial, constitute one, or more than one, of several offences and doubt exists as to the particular offence or offences with which the accused should be charged, he may be charged with, and tried at one trial for, all or any of such offences, or he may be charged with having committed in the alternative one or the other of such of fences.

1. Isfahar Khandkar v. Emp., ILR 62 Cal 956: AIR 1936 Cal 796.

2. Emp. v. Kasinath, AIR 1942 Born 71 (F13).

19.14. Section 237.-

The interpretation of section 237 also was a matter of some difficulty in the past. In a case1 which went up to the Privy Council, several accused were charged under section 302, Indian Penal Code, but as regards some of them, the evidence did not sufficiently or definitely prove that they were present at, and had taken part in, the murder. It was, however, found that they had wrapped up the corpse, placed it on a horse, and gone away with it. These accused were convicted under section 201, Indian Penal Code, though not charged thereunder and their convictions were upheld by the Lahore High Court. Dismissing the appeal, the Privy Council, after referring to sections 236 and 237 of the Criminal Procedure Code, sai.-

"The illustration (to section 237) makes the meaning of these words quite plain. 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. That is what happened here. The three men who were sentenced to rigorous imprisonment, were convicted of making away with the evidence of the crime by assisting in taking away the body. They were not charged with that formally, but they were tried on evidence which brings the case under section 237."

In a later judgment of the Privy Council,2 it was emphasised that the wide power to convict the accused of a crime not cnarged is subject to two conditions, viz., (1) that the crime of which the accused was found guilty was established by the evidence and (b) that having regard to the information available to the prosecuting authorities, it was doubtful which of one or more offences would be established by the evidence. These judgments of the Privy Council have been referred to with approval by the Supreme Court more than once. Since the law appears to be well settled, we consider it best to leave the wording of the sections and the illustrations as they are.

1. Begu v. King Emp., AIR 1925 PC 131.

2. Thakur Shah, AIR 1943 PC 192.

19.15. Section 238(2A) and abetment.-

Section 238(2A) provides that when a person is charged with an offence, he may be convicted of art attempt to commit that offence although such attempt is not separately charged. It is clear that the section does not cover abetment of an offence, And Courts have held1 that conviction for abetment would not be permissible where the accused was only charged with the substantive offence. In one case2, however, a conviction for abetment of rape was upheld, though the offence charged was one of rape, and the abetment was treated as a 'minor' offence under section 238(2). We do not think this was a correct view to take of the section.

The case of abetment stands on a footing different from that of attempt. Abetment is not an incomplete form of the offence, nor connected with it in the same way as an attempt. The ingredients that have to be proved for the abetment of an offence are quite different from those required to establish the substantive offence.3 There are authorities to the effect that if the facts of the case are such that the principle of sections 236 and 237 is applicable and if no prejudice has been caused to the accused in his defence, a conviction for abetment is permissible even though only the substantive offence was charged.4 We do not consider it necessary or proper to widen the scope of section 238 by equating abetment with a minor offence of the same species.

1. Padmanaba v. Emp., 1910 ILR 33 Mad 264; Emp. v. Ragya, AIR 1924 Born 432; Hulas Chandra v. Emp., AIR 1927 Cal 63 (64); Hirasa v. Emp., AIR 1947 Pat 350 (351); Chote v. Emp., AIR 1948 All 168 (170); Narvir Chand v. State, AIR 1952 MB 17 (20).

2. Samuel John v. Emp., AIR 1935 All 935 (937).

3. Narvirchand v. State, AIR 1952 MB 17 (20).

4. Hirasa v. Emp., AIR 1947 Pat 350 (351, 352, 353) (reviews case law); Debi Prasad v. Emp., AIR 1932 Cal 455.

19.16. Section 238(3) incomplete.-

While section 238(3) saves the provisions of section 198 and section 199, it is incomplete in that it does not refer to the other analogous sections which also require a complaint or sanction for taking cognizance of particular offences. For example, section 195, 196 and 196A also require the complaint of a particular person or authority for the offences dealt with therein; and sections 197 and 197A require the previous sanction of the Government for prosecution in respect of certain offences. It appears to be desirable to make it clear, in section 238, that a conviction for a minor offence is not authorised where the requirements imposed by the law for the initiation of proceedings in respect of the minor offence have not been complied with.

This clarification will incidentally help to codify the proposition that "section 238 must yield to section 195."1 Thus, where the complaint is of an offence under section 211, Indian Penal Code, there cannot be a conviction under section 182 on the ground that the latter is a minor offence. The Supreme Court2 has also observed that the provisions of section 195 cannot be evaded by the device of charging a person with an offence to which it does not apply, and then convicting him of an offence to which it does, upon the ground that such latter offence is a "minor offence".

This aspect of the matter may be illustrated by the facts in an Allahabad case,3 wherein a sentence under section 173, Indian Penal Code, was set aside by the High Court. The Magistrate's explanation, that he took cognizance under section 225B, Indian, Penal Code, and convicted the accused under section 173 by virtue of section 238, Code of Criminal Procedure, was not accepted, as there was no complaint of a public servant as required by section 195.

1. Kantir Missir v. Emp., AIR 1930 Pat 98 (102).

2. Basi.-u.-Haq v. State of West Bengal, 1953 SCR 836: AIR 1953 SC 293 (396).

3. Narain Singh v. Emp., AIR 1925 All 129 (Neave J.).

19.17. Section 238(3.-revised.-

We, therefore, recommend that, for su.-section (3) of section 238, the following su.-section may be substituted.-

"(3) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the condition requisite for the initiation of proceedings in respect of that minor offence have not been satisfied."

19.18. Section 239.-

Section 239 which lays down when persons may be charged and tried jointly has been elucidated in a recent decision1 of the Supreme Court. The various clauses of the section need not be treated as mutually exclusive, and it is permissible to combine the provisions of two or more clauses. The joint trial of several persons partly by applying one clause and partly by applying another clause is authorised.

A small grammatical amendment is required in clause (b) which should rea.-

"(b) persons accused of an offence and persons accused of abetment of, or x x x attempt to commit, such offence."

It has been held by the Privy Council2 that the offence of conspiracy and any offence committed in pursuance of the conspiracy are to be regarded as forming part of the same transaction for purposes of section 235 and persons accused of such offences can, thus, be tried under clause (d) of section 239.

We note that Beaumont C.J. has, in a Bombay case,3 criticised the language of clause (f). The interpretation of the words "possession of which has been transferred by one offence" is, however, now well settled, and we do not consider it necessary to alter the wording.

1. State of Andhra Pradesh v. Ganeshwar Rao, (1964) 3 SCR 297: AIR 1963 SC 1850.

2. Babulal v. Emp., 65 Indian Appeals 138: AIR 1938 PC 130 (133).

3. Emp. v. Lakho Amra, AIR 1932 Born 201.

19.19. Section 240.- No change is needed in section 240.

19.20. Power to order separate trial.-

We considered the question whether a provision should be inserted after section 240 to empower the Court to order separate trial where a trial had begun on a joinder of various charges. The power is exercised even now although without an express provision. We do not think it is necessary to insert such a provision.

19.21. Joinder of charges with consent of accuse.-Provision not recommended.-

It was suggested during our discussion that if the accused made a request in writing for the trial of certain charges together, then the joinder of those charges should be allowed even if the joinder is not otherwise permissible under the provisions of sections 233 to 239. We do not think that, in practice, there will be many accused persons making such a request. While theoretically there might be no objection to the suggested provision, it would not have much practical utility.

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