# [1964] 7 S.C.R. 70

- **Citation:** [1964] 7 S.C.R. 70
- **Court:** Supreme Court of India
- **Decided:** 1961-06-15
- **Case number:** Criminal Appeal No. 156 of 1961
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1964-7-s-c-r-70-3109
- **Pages:** 12

## Headnote

1964
March 6
70
SUPREME COURT REPORTS
[1964]
SUNIL KUMAR PAUL
v,
STATE OF WEST BENGAL
(K. SUBBA RAO, K. C. DAS GUPTA AND RAGHUBAR DAYAL, JJ.f
Criminal Law-Offence under s. 409 I.P.C.-Case allotted
for trial to Special Court-Special Judge appointed under the
Criminal Law Amendment Act, if could try offences under
Criminal Procedure Code, at the same trial-Alteration of conviction by High Court to one under s. 420-Legality thereofAbsence of charge under s. 420-Indian Penal Code 1860 (45.
of 1860), ss. 409, 420-Code of Criminal Procedure, 1898 (Act 5
of 1898), ss. 236, 231-West Bengal Criminal Law Amendment
(Special Courts) Act, 1949 (XXI of 1949) s. 4(2).
The appellant was tried and convicted by the Special
Judge for an offence under
s.
409 I.P.C. and sentenced to
rigorous imprisonment for two years and to pay a fine of
Rs. 2,000. On appeal, the High Court altered his conviction
from an offence under s. 409 to one under s. 420 I.P.C. for
cheating the employees of the State Bank, by representing a
bll! as a genuine bill drawn by the Sub-Divisional Health Officer,
and thereby dishonestly inducing the Bank's Staff to make
over the sum of Rs. 1,763-6-0 to hlin and sentenced him to rigorous imprisonment for one year and to a fine of Rs. 2,000.
On appeal by certificate the ·appellant mainly contended
(i) that a case under s. 420 I.P.C. could not be allotted for
'trial to a Special Court by the Government when such an
offence was not committed by a public servant while purporting to act as such public servant; (ii\ that the Special Court
could not take recourse to the provision of s. 237 Code of
Criminal Procedure and if it could, the requirements of s. 237
Code of Criminal Procedure were not satisfied and .consequently
the High Court could not have altered the conviction from s. 409
I.P.C. to one under s. 420 and (iii) that the accused had been
prejudiced on account of the absence of a charge under s. 420
I.P.C.
Held (i) that on the facts proved it must be held that the
offence under s. 420 committed by the appellant would be committed by him as a public servant purporting to act as such, and
that a case involving this offence also could have been allotted
to the Special Court by the Government for trial. The Special
Court was, therefore, competent to try the accused for this
offence if the facts proved established it. Besides, the appellant
could be tried by the Special Court for this offence in view of
the proviso to s. 4 of the West Bengal Criminal Law Amendment
Act.
Bhajahari Monda! v. State of West Bengal, [1959] S.C.R.
1276, distinguished.
(ii) that at the trial of the appellant for an offence under
s. 409 I.P.C., in this case, the appellant could have also been
charged for an offence under s. 420 l.P.C., in view of s. 236 of
the Code of Criminal Procedure.
7 S.C.R.
SUPRE:\IE COURT REPORTS
71
1n view of the proviso to sub-s. (I) of s. 4 of the Act, the
1964
Special Court could have tried the appellant for the offence ~ .1 K- p
1
under s. 420 I.P.C. It did not actually try him for that offence. ' ""' ;mar au
It was however, open to it and to the appellate court to con-state of w;st Ben9'JI
vict him of the offence under s. 420 l.P.C., when trying for an
-
offence under s. 409 I.P.C., in view of s. 237 of the Code of
Criminal Procedure.
(iii) that fin the present case the appellant could not be
said ·to be prejudiced in his conviction under s. 420 I.P.C. on
account of the non-framing of the charge, and consequent nontrial, under s. 420 I.P.C. In fact, no question of i!Tegularity in the trial arises. The framing of the charge under s. 420
I.P.C. was not essential and s. 237 Code of Criminal Procedure
itself justifies his conviction of the offence under s. 420 if that
be proved on the findings on the record.
Case Law discussed.

## Text

1964
March 6
70
SUPREME COURT REPORTS
[1964]
SUNIL KUMAR PAUL
v,
STATE OF WEST BENGAL
(K. SUBBA RAO, K. C. DAS GUPTA AND RAGHUBAR DAYAL, JJ.f
Criminal Law-Offence under s. 409 I.P.C.-Case allotted
for trial to Special Court-Special Judge appointed under the
Criminal Law Amendment Act, if could try offences under
Criminal Procedure Code, at the same trial-Alteration of conviction by High Court to one under s. 420-Legality thereofAbsence of charge under s. 420-Indian Penal Code 1860 (45.
of 1860), ss. 409, 420-Code of Criminal Procedure, 1898 (Act 5
of 1898), ss. 236, 231-West Bengal Criminal Law Amendment
(Special Courts) Act, 1949 (XXI of 1949) s. 4(2).
The appellant was tried and convicted by the Special
Judge for an offence under
s.
409 I.P.C. and sentenced to
rigorous imprisonment for two years and to pay a fine of
Rs. 2,000. On appeal, the High Court altered his conviction
from an offence under s. 409 to one under s. 420 I.P.C. for
cheating the employees of the State Bank, by representing a
bll! as a genuine bill drawn by the Sub-Divisional Health Officer,
and thereby dishonestly inducing the Bank's Staff to make
over the sum of Rs. 1,763-6-0 to hlin and sentenced him to rigorous imprisonment for one year and to a fine of Rs. 2,000.
On appeal by certificate the ·appellant mainly contended
(i) that a case under s. 420 I.P.C. could not be allotted for
'trial to a Special Court by the Government when such an
offence was not committed by a public servant while purporting to act as such public servant; (ii\ that the Special Court
could not take recourse to the provision of s. 237 Code of
Criminal Procedure and if it could, the requirements of s. 237
Code of Criminal Procedure were not satisfied and .consequently
the High Court could not have altered the conviction from s. 409
I.P.C. to one under s. 420 and (iii) that the accused had been
prejudiced on account of the absence of a charge under s. 420
I.P.C.
Held (i) that on the facts proved it must be held that the
offence under s. 420 committed by the appellant would be committed by him as a public servant purporting to act as such, and
that a case involving this offence also could have been allotted
to the Special Court by the Government for trial. The Special
Court was, therefore, competent to try the accused for this
offence if the facts proved established it. Besides, the appellant
could be tried by the Special Court for this offence in view of
the proviso to s. 4 of the West Bengal Criminal Law Amendment
Act.
Bhajahari Monda! v. State of West Bengal, [1959] S.C.R.
1276, distinguished.
(ii) that at the trial of the appellant for an offence under
s. 409 I.P.C., in this case, the appellant could have also been
charged for an offence under s. 420 l.P.C., in view of s. 236 of
the Code of Criminal Procedure.
7 S.C.R.
SUPRE:\IE COURT REPORTS
71
1n view of the proviso to sub-s. (I) of s. 4 of the Act, the
1964
Special Court could have tried the appellant for the offence ~ .1 K- p
1
under s. 420 I.P.C. It did not actually try him for that offence. ' ""' ;mar au
It was however, open to it and to the appellate court to con-state of w;st Ben9'JI
vict him of the offence under s. 420 l.P.C., when trying for an
-
offence under s. 409 I.P.C., in view of s. 237 of the Code of
Criminal Procedure.
(iii) that fin the present case the appellant could not be
said ·to be prejudiced in his conviction under s. 420 I.P.C. on
account of the non-framing of the charge, and consequent nontrial, under s. 420 I.P.C. In fact, no question of i!Tegularity in the trial arises. The framing of the charge under s. 420
I.P.C. was not essential and s. 237 Code of Criminal Procedure
itself justifies his conviction of the offence under s. 420 if that
be proved on the findings on the record.
Case Law discussed.
CRIMINAL APPELLATE JURISDICTION:
Criminal Appeal
No. 156 of 1961.
Appeal from the judgment and order dated June 15,
1961. of the Calcutta High Court in Criminal Appeal No. 745
of 1959.
D. N. Mukherjee, for the appellant.
P. K. Chakraborty and P. K. Bose, for the respondent.
March 6, 1964. The Judgment of the Court was deliver·
ed by
RAGHUBAR
DAYAL, J.-Sunil Kumar Paul has pre· RaghubarD.1yat, I
ferred this appeal, after obtaining a certificate from the Calcutta High Court under Art. 134(l)(c) of the Constitution.
The facts leading to the appeal are these.
The appellant was a clerk in the office of the Sub-Divisional Health Officer at Barrackpore in 1955-56. He used to
prepare bills of the establishment, to present them at the
Sub-treasury and later present them at the State Bank at
Barrackpore, to receive payment in cash and to make over
that amount to the Sub-Divisional Health Officer. Certain
bills were drawn under the heading '38-Medical'. Certain
bills were to be drawn under the heading '39-Public Health'.
Some other bills were drawn under other headings.
On October 5. 1956, the appellant presented a bill for
Rs. 1.769 out of which a sum of Rs. 5-10-0 was to be credited
in the Postal Life Insurance Ledger and the balance of
Rs. 1,763-6-0 was to be received in cash. This bill was duly
passed by the Sub-Treasury and was subsequently presented
to the Bank on October, 6, 1956 for payment of Rs. 1,763-6-0.
The Bank paid this amount to the appellant. The amount was
72
SUPREME COURT REPORTS
[1964}
1964
not paid to the Sub-Divisional Health Officer. In fact, the
&nil Kumar Paul records of the Office of ~~ Sl!b-Divisional Health O~cer did
v.
not refer to any such bill bemg prepared and submitted to
81a1e of Ww Bengal the Sub-Treasury and the Ban~ for payment. .
BagAubar Dayal, J.
A bill for practically the same items which were mentioned in the bill cashed on October 6, was however presented on October I, 1956. It was for an amount of
Rs. 1,767 out of which Rs. 5-10-0 were to be credited to the
PLI account ledger and the balance of Rs. 1,761-6-0 were to·
be paid in cash. The amount of this bill was received on October 1, and was duly handed over to the Sub-Divisional Health.
Officer. It may be mentioned that this bill cashed on October 1,
1956 was at first prepared for Rs. 1,769 and the amount to be
received in cash was to be Rs. 1.763-6-0 but prior to this
encashment, a correction was made at some stage, and the
bill was reduced by Rs. 2 in the total amount and consequently in the amount to be paid in cash.
The fact of the presentation of a bill for its encashment
of Rs. 1,763-6-0 on October 6, 1956 came to the notice of the
Sub-Divisional Health Officer a.t the instance of the Accoul)tant General and on enquiry it was found that no such bill had
been actually presented by his office for encashment and that
rio such amount was received by him. This led to a complaint
and further enquiries and investigation which ended in the
prosecution of the appellant.
The case was made over to the Special Judge by the
Government in view of the provisions of the West Bengal
Criminal Law Amendment (Special Courts) Act, 1949
(W. B. Act XXI of 1949), hereinafter called the Act, as it
involved an offence punishable under s. 409 I.P.C. The
Special Judge tried the appellant for that offence and convicted him and sentenced him to rigorous imprisonment for
two years and to pay a fine of Rs. 2,000. The appellant
went in appeal to the High Court of Calcutta. The High
Court agreed with the appellant's contenion that no offence
under s. 409 l.P.C. had been made out, but held that he was
proved to have committed an. offence under s. 420 I.P.C. It
accordingly altered his conviction from an offence under
s. 409 l.P.C. to one under s. 420 l.P.C., for cheating the employees of the State Bank, Barrackpore, by representing that
the bill for Rs. 1,769 gross and Rs. 1.763-6-0 cash drawn on
October 6, 1956, was a genuine bill drawn by the Sub-Divisional Health Offieer, and thereby dishonestly inducing the
Bank's staff to make over the sum of Rs. 1,763-6-0 to him
and sentenced him to rigorous imprisonment for one year and
to a fine of Rs. 2,000. It is against this order that this appeal
ha.s been preferred.
'1 S.C.R.
SUPREME COURT REPORTS
73
The facts found by the High Court are sufficient to
1964
justify the finding that the appellant committed the offence Suni! Kumar Pa.J
under s. 420 l.P.C. Learned counsel for the appellant has 811 ,, wY't 8
1
I h f II
,
.
aeo,
"
maa
'llrgec t e o owing pomts:
__
(I) A case involving an offence unde1 s. 420 l.P.C.
cannot be allotted for trial to a Special Court by
the State Government when such an offence is
not committed by a public servant while purporting to act as such public servant.
(2) The Special Court could not take recourse to the
provisions of s. 237 Cr. P.C., and if it could, the
requirements of s. 237 Cr. P.C. were not satisfied in the present case, and that consequently
the High Court could not have altered the conviction of the appellant from ari. offence under
' s. 409 l.P.C. to one under s. 420.
(3) The ingredients of an offence under s. 420 I.P.C.
~ere neither ~lleged nor proved by the prosecution.
\
·(4) The accused has 'been prejudiced on account of
the absence of the necessary allegations and the
omission to frame a charge for an offence under
s. 420 l.P.C. and therefore the provisions of s.
537 Cr. P. C. would not cure this defect in trial.
To appreciate the first contention, reference may be
made to the relevant provisions of the Act. They are:
"4(1) Notwithstanding anything contained in the Code
of Criminal Procedure, 1898, or in any other
law, the offences specified in the Schedule shall
be triable by Special Courts only:
Provided that when trying any case, a Special Court
may also try any offence other than an offence
specified in the Schedule. with which the accused
may under the Code of Criminal Procedure, 1898,
be charged at the same trial.
(2) The distribution amongst Special Courts of cases
involving offences specified in the Schedule, to
be tried by them, shall be made by the State
Government
Raghubar Dayal, J.
\
74
SUPREME COURT REPORTS
[19641
19Gl
5.
~tt;unil Kumar Paul
v.
Slate of U' est lJen.g{(l
(2) Save as provided in sub-section (I) ......... the proviRauhubar Dayal, J, sions the Code of Criminal Procedure, 1898, shall, so far
as they are not inconsistent with this Act, apply to the proceedings of a Special Court; and for the purposes of the
said provisions, a Special Court shall be deemed to be a
Court of Session trying cases without a Jury, and a person
conducting a proseC1Jtion before a Special Court snail be
deemed to be a Public Prosecutor."
THE SCHEDULE
•
•
•
*
•
2. An offence punishable under section 409 of the
Indian Penal Code, if committed by a public servant or by
a person dealing with property helonging to Government as
an agent of Government in respect 9f propertywith which he is entrusted, or over which he has dominion
in his capacity of a public servant or in the way of his business as such agent.
3. An offence punishable under section 417 or section
420 of the Indian Penal Code, if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government, while purporting to act
as such public servant or agent.
•
'
The Government notification allotting the present case
to the Special Court is not on the record and therefore what
its actual contents were cannot be stated with any precision.
It may however be assumed that it mentioned the offence involved in the case to be that under s. 409 I.P.C., and,
possibly, did not state the various facts which went to establish that offence against the appellant.
Section 409 1.P.C. is mentioned in the Schedule referred
to in sub-s. (2) of s. 4 of the Act. The State Government was
therefore competent to allot the case involving that offence
to the Special Court. In fact it had ((JI allot the case to the
Special Court in view of the provision of sub-s. (!) of s. 4
to the effect that the offences specified in the Schedule shall
be triable by Special Courts only. The question therefore
really is whether the Special Court could try the appellant
·-
'
·.,.
'
7 S.C.R. ... SUPRfilIE COURT REPORTS
75
for the offence
u~der s'. 420 I.P.C. An -offence under s. 420
196l
l.P.C. when committed in certain circumstances is also men- sunil Kumar Paul
tioned in the Schedule. It has to be tried by Special Courts
v.
1
only when it is committed by a public servant while purport- 81"" a/ West Benga
ing to act as such. There is no doubt that the appellant is a Raghubar Dayal, J.
pub!ic servant. This has not been disputed.
Learned counsel for the appellant, Mr. Mukherjee, has
urged that the expression 'while purporting to act as such
public servant' be construed to mean 'while purporting to
act in the discharge of official duties' and that presentation
of a false bill could not be in the discharge of official duty.
Such presentation may not be in the discharge of official
duty, but the question is different and is as to whether the
presentation of a false bill was made by the public servant
purporting to do so in the discharge of his duties. The appellant did present the false bill purporting to present it in the
discharge of his duties as a clerk of the Office of the SubDivisional Health Officer who was duly authorised to present bills and cash them.
Reliance is placed on the case reported as Bhajahari
Monda! v. The State or West Bengal(') in support of the contention that the appellant should not have been tried by the
Special Court of the offence under s. 420 _ I.P.C. when the
case was allotted as one involving an offence under s. 409
I.P.C. The facts of that case were very different. The order
allotting the case mentioned the offence of which the accused
was to be tried to be an offence under s. 161 read withs. 116
I.P.C. The order was made on November 27, 1952. Prior to
this date, on July 28, 1952, abetment of an offence under
s. 161 I.P.C. was made a distinct offence under s. 165-A
I.P.C. by the Criminal Law Amendment Act XLVI of 1952.
An offence under s. l 65A was not mentioned in the Schedule
to the Act as it stood on November 27, 1952. This Court
held that the notification of the Government making over the
case to the Special Court was bad as the case made over related to no existing offence. Such cannot be said of the Government notification allotting the case in the present appeal
to the Special Court, as on the date of such notification there
existed an offence under s. 409 I.P.C. and it was included
in the Schedule to the Act.
On the facts proved, it is not to be doubted that the
appellant presented the bill for Rs. 1,763-6-0 at the State
Bank on October' 6, purporting to act -as the clerk of the
Sub-Divisional Health Officer. The bill presented was on behalf of that officer. The Bank made the payment to him as
(') [1959] S.C.R 1276.
··-~-:'J/./\"_'": ; \
- (
' '
>,
I
',".,)
\'.'k-' ' ·'"· ~-~'-.-
('~-~:."; . \ ·>t"
,·
. \ . ·' .76 · \''. • . SUPREME COtJR~ ·REPORTS
[1964
~.\
'----o-~----
"
.
'·1954
. the messenger of that officer duly authorised to receive paySunilK;;;;;;,. Paul ment in cash. It follo-ws that the offence under s. 420 com-
.·
v.
mitted by the appellant would be committed by him as a
State of IV est Be1VJal public servant purporting to act as such, and that a case inRaghubar Dayal, J. volving this olfence also could have been allotted to the
Special Court by the State Government for trial. The Special
Court was therefore competent to try the accused for "this
offence if the facts proved established it.
Apart from the consideration that the offence of cheating of which the appellant-accused has been convicted fell
within the offences mentioned in the Schedule, the appellant
could be tried by the Special Court for this offence in view
of the proviso to s. 4. The proviso authorizes the Special
Court, when trying a case involving an offence specified in
the Schedule to try any offence other than that offence with
which the accused may be charged at the same trial in accordance with the provisions of the Code of Criminal Procedure.
The accused could be charged with an offence under s. 420
I.P.C. if he could be tried for this offence at the trial for an
offence under s. 409 I.P.C. He could be so tried in view of
ss. 236 and 237 Cr. P. C.
It is urged for the appellant ·that the prov1S1ons of s.
236 Cr. P. C. would apply only to those cases where there be
no doubt about the facts which can be proved and a doubt
arises as to which of the several offences had been committed
on the proved facts. Sections 236 and 237 read:
"236. 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.
Illustrations
(a) A is accused of an act which may amount to theft;
or receiving stolen property, or criminal breach
df trust or chea.ting.
He may be charged with
theft, receiving stolen property, criminal breach of
trust and cheating, or he may be charged with having committed theft, or receiving stolen property,
or criminal breach of trust or cheating .
•
7 S.C.R.
SUPREME COURT REPOR'I'S
77
237. If. in the case mentioned in section 236, the
1964
accused is charged with one offence, and it s..,.il Kumar Pam
appears in evidence that he committed a different Staie of ;;;,,1 Bengal
offence for which he might have been charged
-
under the provisions of that section, he may be ~h.OOr Dayal, J.
convicted of the offence'· which he is shown to
have committed, although he was not charged
with it.
Illustration
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."
The framing of a charge under s. 236 is, in the nature
of things, earlier than the stage when it can be said what
facts have been proved, a stage which is reached when the
court delivers its judgment. The power of the Court to frame
various charges contemplated by s. 236 Cr. P. C. therefore
arises when it cannot be said with any definiteness, either
by the prosecutor or by the Court, that such and such facts
would be proved. The Court has at the time of framing the
char;~es, therefore to consider what different offences could
be-made out on the basis of the allegations made by the prosecution in the complaint or in the charge submitted by the
investigating agency or by the allegations made by the
various prosecution witnesses examined prior to the framing
of the charge. All such possible offences could be charged
in view of the provisions of s. 236 Cr. P. C. as it can be
reasonably said that it was doubtful as- to which of the offences the facts which could be ultimately proved would constitute. The facts which must have been alleged prior to the
stage of the framing of the charge in the present case must
have been what had been stated in the charge-sheet submitted
by the Investigating Officer, 24-Parg'anas, which is printed
at p. 3 of the appeal record. This charge-sheet narrates in
the column meant for the name of offences and circumstances
connected with it:
"that on the 6th October 1956 Sunil Kumar Paul, a
Public servant in the employment of the office of
the Sub-Divisional Health Officer. Barrackpore
i.e., (clerk) dishonestly drew Rs. 1,763-6-0 excluding Postal Life Insurance deduction of Rs. 5-10-0
from the State Bank of India, Barrackpore Branch
by submitting a false duplicate Estt. Pay Bill
•
1964
Bunil Kumar Paul
...
Stale of WeBI Bengal
78
SUPREME COURT REPORTS
[1964]
under head 39 for the month of September 1956
for the office of the said S.D.H.O., Barrackpore.
The money drawn was not credited to the office
of the Sub-Divisional Health Officer, Barrackpore."
llO(IAul>ar Dayal, J. I .
. II
. h
f
h
h
. .
t 1s practlca y on t ese
acts t at t e conviction of the
appellant for an offence under s. 420 I.P.C. has been founded. It follows that the Special Court could therefore have
framed a charge under s. 420 I.P.C. at the relevant time if
it had been of the opinion that it was doubtful whether
these facts constitute an offence under s. 409 I.P.C. as stated
in the charge-sheet or an offence under s. 420 I.P.C.
When a charge under s. 420 I.P.C. could have been
framed by the trial Court by virtue of s. 236 Cr. P.C. that
Court or the appellate Court can, in law, convict the appellant of this offence instead of an offence under s. 409 I.P.C.
if it be of the view that the offence of cheating had been
established. This would be in accordance with the provisions
of s. 237 Cr. P. C.
In Begu v. The King Emperor(') ss. 236 and 237 were
construed by Viscount Haldane thus:
"The illustration makes the meaning of these wore.ls
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 s. 237."
This was approved by this Court in Ramaswamy Nadar
v. The State of Madras('). In this case, the accused, acquitted
of an offence under s. 420 1.P.C. was convicted by the High
Court of an offence under s. 403 J.P.C. This Court held that
the High Court could do so. On facts, however, this Court
did not find the offence under s. 403, proved.
In the State of A ndhra Pradesh v. Kandimalla Subbaiah(')
it was held that while a Special Judge appointed under s. 6 of
the Criminal Law Amendment Act (XL VI of 1952) had jurisdiction to try cases under s. 5 of the Prevention of Corruption
Act, he could, under s. 7(3) of the Criminal Law Amendment
(') 52 I.A. 191.
(') [1958] S.C.R. 739.
(') [1962] · 1 S.C.R. 194, 203.
7 S.C.R.
SUPREi\IE COURT REPORTS
79
Act try other offences under the Code of C:riminal Pro1964
cedure if the accused could be charged with them atsunil Kumar Paul
the same trial and that therefore the accused could be tried 8
v. B
al
at the trial for an offence under s. 5 of the Preventale of West
""!!
tion of Corruption Act for an offence under s. 120B read R09hu!>ar Dayal, J.
with ss. 466, 467: 420 I.P.C. and that the other accused who
had abetted the commission of these offences could also be
tried. Sub-s. (3) of s. 7 of the Criminal Law Amendment
Act provided that when trying any case a Special Judge
might also try any offence other than an offence specified in
•
s. 6 with which the accused might, under the Code of Criminal Procedure, 1898, be charged at the same trial.
In support of his contentions, learned counsel for the
appellant referred to the case reported as Nanak Chand v.
The State of Punjab(') wherein it was stated at p. 1212:
.
"The provisions of section 236 can apply only 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 in which case any number of charges
can be framed and tried or alternative charges
can be framed .............. .In the present case
there is no doubt about the facts and if the allegation against the appellant that he had caused
the injuries to the deceased with takwa was established by evidence, then there could be no doubt
that the offence of murder had been committed."
This does not help the appellant's contention as the allegations in that case if proved could establish, according to
the Court, the offence of murder only and therefore there
was no room for any doubt about the nature of offence committed and for the application of s. 236 Cr. P. C. In that case,
the appellant was tried along with others for an offence
under s. 302 read with s. 149 I.P.C. The Sessions Judge convicted the appellant and a few others under s. 302 ·read with
s. 34 I.P.C. The High Court acquitted the others and altered
the conviction of the appellant to the offence under s. 302
I.P.C. It was, in this setting, that this Court held that on the
basis of the specific allegation that the appellant had struck
the deceased with a takwa, there could be no doubt of that
fact constituting an offence under s. 302 and not an offence
under s. 302 read with s. 149 I.P.C.
We therefore hold thatiit the trial of the appellant for
an offence under s. 409 I.P.C., in this case, the appellant
could have also been charged for an offence under s. 420
I. P. C. in view of s. 236 of the Code of Criminal Procedure.
(') [1955] 1 S.C.R. 1201.
..
I
80
SUPRE:ME COURT REPORTS
[1964]
1984
It is then urged for the appellant that under the proviso
Su .. il Kumar Paul to s. 4 of the Act, the Special Court can try any other offence
s1a1e of ;;,1 Be al only when the accused is
sp~ifically charged with that
. _
ng offence. The language of the proviso does not lead to such a
/laglobar Dayal, J. conclusion. It provides for the trial of the accused for any
other offence provided the accused could be charged with
that offence at the san.e trial under the provisions of the
Code of Criminal Procedure. The proviso does not say that
the charge must be framed, though of course, if the trial
Court itself tries the accused for a certain offence, it will
ordinarily frame a charge. The proviso empowers a Court
to try the accused for that offence and has nothing to do
with the power of the trial court or of the appellate Court
to record a conviction for any other offence when an accused
is being tried with respect to an offence mentioned in the
Sch.edule. The Court's power to take recourse to the provisions which empower it to record a conviction for an offence
not actually charged, depends on other provisions of the
Code and the Act.
Section 5(2) of the Act provides that the provisions of
the Code of Criminal Procedure so far as they are not inconsistent with the Act, would apply to the proceedings of the
Special Court and for the purposes of _these provisions, the
Special Court could be 4eemed to be a Court of Sessions.
There is nothing in the provisions of s. 237 of the Code of
Criminal Procedure which
is
inconsistent with the provisions of the Act. Section 237 simply empowers the Court to
convict an accused of the offence with which he could have
been charged under s. 236, even when he had not been charged with it. Section 237 really deals with the final orders
which the Court can pass on a trial of an accused for a
certain offence. In view of the proviso to sub-s. (!) of s. 4,
the Special Court could
have tried the appellant for the
offence under s. 420 I.P.C. It did not actually try him for
that offence .. It was however open to it and to the appellate
Court to convict him of the offence under s. 420 I.P.C. when
trying for an offence under s. 409 l.P.C. in view of s. 237 of
the Code.
It has also been urged for the appellant that the proviso
to s. 4 does not give any power to the Special Court to try
an offence which be independent of the offence mentioned
in the allotment order. That -is to say, the Special Court, in
this case, could have tried the appellant only for such offences
which will be ill' some way related to the offence under s. 409
I.P.C. It is further urged that the in'gredients of the offence
under s. 420 I.P .C. are absolutely different from the ingredients of the offence under s. 409 I.P.C.
7S.C.R.
SUPREME COURT REPORTS
81
The ingredients of two offences must be different f~om
1964
one another and it is therefore not necessary to consider Sunil Kumar Paul
whether the ingredients of the two offences are in any way 8
.r wv.
B
1
·
late oJ
es~
enJ,Ja
related. The Court has to see, for the purpose of the proviso,
_
whether the accused could be charged with any offenceRaghubar Dayal, J.
other than the one referred to in the allotment order, in
view of the provisions of the Code. There is nothing in the
proviso which could lead to the construction that any limitations other than those laid down by the provisions of the
Code of Criminal Procedure were to affect the nature of the
offence which could be tried by the Special Court.
We are theref9re of opinion that the Special Court could
try the appellant for the offence under s. 420 I.P.C. and that
therefore the High Court was right in altering his conviction
from that under s. 409 to s. 420 1.P.C.
We have already referred to the statement in the chargesheet that the appellant presented a false bill to the State
Bank and cashed it. This allegation is sufficient for the purpose of the offence under s. 420 I.P.C. It was not necessary
to allege or to prove that the appellant himself had prepared
the false bill. Such an allegation could not be made in the
present case in particular, as the bill which was cashed on
October 6, could not be traced. The presentation of the bill
for encashment carries with it the representation that it is
a genuine bill and therefore the allegations in the case attri·
buted misrepresentation to the appellant at the time he presented the bill.
It may be mentioned here that if the bill had been a
genuine bill, the offence made out in the present case would
have been an offence under s. 409 f P.C. In the · circumstances, therefore, the appellant cannot be said to be prejudiced in his conviction under s. 420 l.P.C. on account bf the
non-framing of the charge, and consequent non-trial, under
s. 42~ I.P.C. In fact, in the circumstances of the case, no
questwn of irregularity in the trial arises. The framing of
the charge under s. 420 I.P.C. was not essential and s 237
Cr. P. C. itself justifies his conviction of the offence ~nder
s. 420 if that be proved on the findings on the record.
The last contention for the appellant was that the sent~nce is ~eve~e. We do not consider a sentence of I year's
ngorous 1mpnsonment and a fine of Rs. 2,000 severe.
The appeal therefore fails and is dismissed.
Appeal dismissed.