Ray, J.:— The petitioner no. 1 is the father of petitioner no. 2. They have been convicted under rule 81(4) of the Defence of India Rules, for having contravened clause (5) of a license Form A of the Bihar Coal, Sugar and Kerosene Oil Dealers' Licensing Order, 1942. The petitioner no. 1 has been sentenced to three months' rigorous imprisonment and petitioner no. 2 has been sentenced to a fine of Rs. 60 in default two weeks' rigorous imprisonment.
The offence was brought to light in the following circumstances: On the 5th of May, 1945, one Jagdish Ram (P.W 3), went to the shop of the petitioners and purchased four seers of sugar from petitioner no. 1 who charged Rs. 4-8-0 as the price. On protest of Jagdish Ram to the effect that the controlled rate was 0-7-6 per seer, the accused did not pay any, attention to the same. On being questioned to furnish a receipt, he refused to do so. Thereupon, the said Jagdish Ram went to the police-station in company of a chaukidar and lodged an information. Both the Courts below have found as a fact that the occurrence is true.
The petitioner no. 1 was a licensee. His license was cancelled presumably on account of, some misconduct in connection with transactions under the license. Two or three months after curiously enough, a license was granted to petitioner no. 2, his son, who is a school-boy of hardly 11 years of age. It has been found as a fact that at the time of this occurrence, as at all other material times when the business of the shop has to be transacted, the boy attends the school and whole affairs of the shop are conducted by petitioner no. 1, the father. It is beyond any possibility of doubt that the son is merely a farzidar in the matter of license of the father who on account of his misconduct lost the previous license and got one in the name of his son. Both the petitioners were charged on two counts, namely, for having charged a price more than the controlled rate for sugar and for contravening one of the conditions of the license which is laid down in paragraph 5 thereof. They were acquitted of the charge on the 1st count on the ground that rule 119 of the Defence of India Rules had not been complied with as the authority fixing the controlled rate did not prescribe the manner of publication of the notice in the same order as required under the rule. In view of the findings of fact, however, they were both convicted on the second count, namely, for contravention of one of the conditions of the license. Paragraph 5 of the license reads as follows:—
“The licensee shall issue to every customer a correct receipt or invoice, as the case may be, giving his own name, address and licence number, the date of transaction, the quantity sold, the price charged and shall keep a duplicate of the same available for inspection on demand by officer of Government authorised under clause (ft) of the Bihar Coal, Sugar and Kerosene Oil Dealers' Licensing Order, 1942.
It is needless to say that the facts found concurrently by both the Courts below are adequate to bring the charge home to the accused persons. What has been contended in this criminal revision is that the conviction of petitioner no. 1 cannot stand as it is bad in law in view of the fact that he is not a licensee. It is correct to say that this offence aims at contravention of the terms of the license by the licensee; but as argued by the learned Counsel representing the Crown, the question that has to be considered is whether petitioner no. 1 can be convicted of abetment of contravention of the rule though not of the substantive offence. In my judgment, there is absolutely no reason why he should not be convicted for abetment even if he escapes from the principal offence on account of a technical defect in the prosecution case. Then it is argued that as he has been charged with the substantive offence, he cannot be convicted of abetment. In view of this argument two courses are open, namely, the question of law has to be examined whether the Court of Revision can alter the finding for a conviction of the substantive offence to a conviction of abetment, and, if not, whether the case should be remanded for rehearing. There is a great deal of difference of opinion with regard to the question whether an accused charged with a substantive offence can be convicted for abetment without a separate charge for it. There are cases on both sides of the line, and I propose to investigate in order to come to a correct conclusion if possible. So far as this Court is concerned, there also seems to be some difference of opinion though a case has never been decided by a Division Bench. Before proceeding to examine the case-law on the subject, I wish to call attention to the group of sections of the Criminal Procedure Code bearing upon the question of joinder of charges. Section 232 lays down that if any Appellate Court, or the High Court in the exercise of its powers of revision be of opinion that any person convicted of an offence was misled in his defence by the absence of a charge or by an error in the charge, it shall direct a new trial to be had upon a charge framed in whatever manner it thinks fit. Section 233 lays down that for every distinct offence of which any person is accused there shall for a separate charge and every such charge shall be tried separately, except in the cases mentioned, in sections 234, 235, 236 and 239. Sections 234 and 235 are not of any relevance to the facts of this particular case. Section 236 provides that 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 or other of the said offences. According to this section if the facts so permit, an accused can be tried alternatively for the substantive offence or the abetment thereof. Section 237, provides that 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.
Coming to the case at hand, if it can be shown that the facts making out an offence in the particular case, are such that it is doubtful in law to decide whether the accused, petitioner no. 1 is guilty of the principal offence or of the abetment, he could be charged alternatively of both the offences and even if he is not so charged, he can be convicted for one of them, while the charge is in respect of the other. Section 238 provides when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. There is an amendment of this section by addition of sub-section (2-A.) which runs as follows:—
“When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.”
The other sections in the group are not material for this decision. I shall presently show that in some cases abetment has been considered to be a minor offence, and, therefore, on that basis it has been held that one charged with the substantive offence can be convicted for its abetment. On my part, however, I do not share that view. With due respect I fail to understand how an abetment of an offence is a minor offence. One offence being minor of the other is in fact defined in sub-section (1) of the section, which makes it clear that if, except for establishing certain elements of the offence, the facts proved constituted another offence by themselves without those elements, it is in that case only it is said that a minor offence has been committed. In my view, therefore, if the case can come under the sections 236 and 237, then only the petitioner no. 1 can be convicted for abetment of the offence without a charge for it.
In the case of Sheoratni v. Emperor which is one of the cases of this Court dealing with the point, the conviction was sought to be upheld on the principle enunciated in section 237 of the Criminal Procedure Code. Das, J. sitting singly, dealt with the point in the following manner: “but the learned Assistant Government-Advocate says that the conviction is perfectly correct under section 237 of the Code of Criminal Procedure. Section 237 provides that 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. It will be seen, therefore, that the operation of section 237 is by the express provision of that section limited only to the case mentioned in section 236. Section 236 provides that 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 convicted of having committed all or any of such offences, or he may be charged in the alternative with having committed some one of the said offences. Therefore, reading section 236 it appears that the accused may be convicted of an offence although he was charged with another offence, if a single act or a series of acts with which he may be charged is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute. Now, in this case is it doubtful upon the facts found by the Courts below which of the several offences has been committed by the petitioner. In my view section 236, which must control section 237, only applies when from the evidence led by the prosecution it is doubtful which of the offences has been committed by the petitioner. But if the evidence which has been led by the prosecution leads to one result and one result only, it cannot possibly be said that it is doubtful which of the offences has been committed by the petitioner”. Taking this view as to the meaning of section 236 the learned Judge held that the conviction for abetment of the offence while the accused had been charged for the substantive offence was bad. It may be noted in the first place that this case is no authority for the proposition that if any particular case answers the requirements laid down in section 236, and, therefore, comes to be governed by section 237 the conviction for abetment cannot be sustained. With great respect, I fail to understand that section 236 while providing that in case of doubt the accused may be charged either severally or alternatively for different offences, what is meant is not doubt with regard to the facts but doubt with regard to the law, that is to say, when on certain facts it is doubtful what offence it will amount to, it is then only that the man can be charged alternatively with several offences if the facts so permit. So far as the question of doubt as to fact is concerned, that does not entitle the prosecution to involve the accused in a number of charges, rather that is a course which is distinctly prohibited by the provisions relating to accuracy of framing of the charges and their joinder in one trial.
There is another case of this Court: Darbari Lal…Applicant; v. Emperor…Opposite Party., decided by Ross, J., in which the learned Judge, following a Madras case which I shall deal presently [Padmanaba Payi Kanniah v. Emperor], held that there can be no conviction, for abetment while the charge is for the substantive offence. There is no discussion whatsoever on the point.
So far as the Bombay High Court is concerned, there are two cases: The earliest one is Reg. v. Chand Nur and Emperor v. Raghya Nagya. The latter case follows the earlier one and holds that, the Legislature in amending section 238 of the Criminal Procedure Code by adding sub-section (2-A) and thereby making it permissible to convict a man for attempt of an offence even though he is not charged for it and while he is charged with the principal offence, makes it clear, inferentially, that for sustaining a conviction for abetment a separate charge has to be framed. The case further says that circumstances constituting abetment may be quite distinct from the circumstances constituting the principal offence, and the accused may not be conscious that be will have to meet those circumstances implying abetment. Therefore, it is said, it is not proper for them to convict. The inference drawn from the absence of amendment of section 238 is not in point. Section 238 is devoted to providing for correctness of conviction for the minor offence while the accused is charged with the major offence. This inference is only permissible if abetment is taken to be a minor offence of the principal offence, but it is not so. So far as the question of attempt to commit an offence is concerned, there having been some doubt expressed in Courts as to whether a minor offence or a substantive offence was committed, the Legislature stepped in and introduced the amendment. The decision of the Court so far as it has laid down that where the accused is not conscious on account of the charge of the fact that he will have to meet certain circumstances which do not fall to be considered in the charge for the substantive offence but which have to be made out in order to sustain a conviction for abetment, the conviction for abetment should not be made enunciates no doubt a true rule. But where the facts of the case are such that the circumstances required to make out an offence for abetment are almost the same which are required for making out the substantive offence and the accused is not taken by surprise nor is he prejudiced in his defence on account of the absence of a charge for abetment, he can certainly be convicted for it even though charged for the substantive offence. This is in fact the spirit of sections 236 and 237.
In the case of Debiprasad Kalowar v. Emperor their Lordships did not accept the view taken in the earlier Calcutta case of Hulas Chand Baid v. Emperor and said: “It is argued from that, that inasmuch as the section permits of a conviction of an attempt to commit an offence, it, by implication, excludes a conviction of abetment. I cannot accept that view. It appears to me that this case falls within the provisions of section 236. A conviction of abetment, although it is not charged, is lawful, not by reason of section 238 but by reason of section 237. This view has been adopted in the more recent case of Jnanendra Chandra Ghatak v. Emperor. In that case Suhrawardy and Jack, JJ. carefully examined all the cases and came to the conclusion that each case must be considered upon its own merits and that the authorities do not justify a general proposition to the effect that in no case where the substantive offence only is charged is a conviction for abetment legal.”
In the case of Emperor v. Mahabir Prasad it has been said: “Abetment not being a minor offence, section 238 would not apply. It can come under section 237 if there is no element in the abetment which is not included in the charge. The principle is that no man should be convicted of an offence on a charge which he had not had an opportunity of answering.”
In the case of Jnanendra v. Emperor it has been said that where the case can be brought within the principles of section 237 of the Criminal Procedure Code and the accused has notice of the facts, that he has to meet in case of a charge for abetment, there is nothing wrong to convict him for abetment even though he has been charged for the substantive offence. The same principle has been adopted in various other High Courts though there is some conflict of opinion in Madras. In one Division Bench case of Yeditha Subbaya v. Emperor it has been said that if on the facts two charges that is, one for the principal offence and the other for abetment can be framed, then the accused can be convicted of abetment though not charged separately. If the facts constituting the principal offence and the abetment are different as they generally are, then the conviction cannot be for abetment on a charge for the principal offence.
The case of Punamchand Amarchand Marwadi v. Emperor accepts the view of the Calcutta High Court to the effect that a, conviction for abetment is permissible though not separately charged provided the charge for the substantive cffence bring to the notice of the accused all the facts that are necessary for making out a case of abetment. The decision proceeds mainly upon the applicability to any particular case of sections 236 and 237 of the Criminal Procedure Code.
The decision in Khuman v. Emperor says: “No universal rule can be laid down to the effect that in no case is a conviction for abetment permissible, where only the principal offence has been charged. But if on precisely the same facts charges might have been framed both of the commission of the principal offence and of the abetment thereof, the case comes within the purview of sections 236 and 237 and the High Court may, in exercise of either its appellate or its revisional jurisdiction, alter the conviction for the principal offence to one for abetment thereof although the offence of abetment was not separately charged against the accused”.
The trend of authorities, therefore, is to the effect that if the facts of the case are such that the principles of sections 236 and 237 may be applicable thereto, and if no prejudice is caused to the accused in his defence, the Court of Revision can alter a conviction for substantive offence into one for abetment.
Coming to the facts of the present case, the petitioner along with his son was charged in the following manner:—
“That you, on or about the 15th day of May, 1945, at Ghandi, police-station Arrah Moffasil, did not issue a receipt on ??? to the abovementioned Jagdish Ram (P.W 3) and thereby contravened condition no. 5 of the license issued in the name of Sarju and thereby contravened orders made under 81(2), Defence of India Pules and thereby committed an offence punishable under section 81(4) of Defence of India Rules and within my cognizance.”
The substance of this charge is that though the license stands in the name of your son, you, for all practical purposes, are a licensee too, and you have committed the offence in the manner alleged. The only fact that the license does not stand in his name makes him guilty, if at all, of abetment and not of the substantive offence. Had the license stood in his name, or had the relevant rule of the Defence of India Rules made a provision to bring the beneficiary of a particular license within the purview of a rule in the same manner as the man in whose name the license stood, he could have been convicted of the substantive offence as well. After giving my anxious consideration to the case, I do not find any single fact which is necessary either to be said or proved in order to convict him for abetment which has not been said nor proved in order to convict him of the substantive offence. In my view this is just a case which comes within the purview of sections 236 and 237 of the Criminal Procedure Code.
Besides, the evidence discloses that the licensee is a boy of 11 years age, as I have already said. Therefore, the petitioner's concern in the offence amounts to this that he is in substance the licensee and that he, in carrying on the whole business and affairs, has contravened the rules. In my view, therefore, this case comes within sections 236 and 237.
It was argued by Mr. Prem Lall on behalf of the petitioner no. 1 that had he been charged for abetment, he could have taken a defence that according to the practice of the shop, the licensee himself personally could come and issue a receipt basing on the notes prepared or left or on information received from the salesman. If this argument could convince me, certainly I should acquit petitioner no. 1 of the charge; but if this was the practice, or if any other defence of the kind was available, that would also prevail in exonerating him from the principal offence. Any licensee can come and say that it is not that I refused to grant a receipt, but I wanted to give it later after having formally prepared it. I do not see that there is any defence which was available to him against the charge of abetment which was not necessary to be put forward while answering a charge for the substantive offence. Therefore, in my view, he is not at all prejudiced by altering the conviction of substantive offence into one for abetment which I hereby do.
In my view, however, the sentence of rigorous imprisonment calls for interference. The petitioner no. 1, it is represented, has already suffered one week's imprisonment. I would, therefore, remit the rest of the sentence of imprisonment and in lieu thereof I would sentence him to a fine of Rs. 150 and in default two months' rigorous imprisonment. The case of petitioner no. 2 has not been re-agitated before me by the learned Counsel, who in his usual fairness submitted that there is no point against his conviction and so he had nothing to say, and that was done, in my opinion, very rightly.
Subject to this modification, the rule is discharged.
Order accordingly.
K.D