Whether Court can convict accused charged under S 302 of IPC for an offence of dishonestly receiving stolen property?

The learned Public Prosecutor relying on sections 221 and 222 of the Code of Criminal Procedure, 1973 pressed for a conviction of the appellant for an offence punishable under section 411 of the Indian Penal Code on the ground that there is acceptable evidence that M.O. 1 and M.O. 7 series were recovered from a place pointed out by the appellant. We may say at once that neither section 221 nor section 222 applies to the facts of the case.

14. The prosecution has no case at the commencement of the trial that the appellant had committed robbery or theft or any other cognate offence. The charge against the appellant is specific and categoric and he has been charged only for an offence punishable under section 302 I.P.C. There are no facts or particulars alleged in the charge showing or indicating that the appellant had committed any offence other than murder. Sub-section (2) of section 221 is controlled by sub-section (1) as is clear from the opening words' "If in such a case" in sub-section (2). While sub-section (1) of section 221 corresponds with section 236; sub-section (2) corresponds with section 237 of the Code of Criminal Procedure, 1898. The general rule is that an accused person cannot be convicted of an offence in the absence of a specific charge in that respect; but sections 221 and 222 of the Code are the two exceptions to the said rule. The omission to frame a separate and specific charge in cases not covered by the above sections will be an incurable irregularity. The framing of a charge is a vital and important part of the trial. The omission to frame a charge is a serious defect which should be vigilantly guarded against, as in some cases it may be so serious that by itself it would vitiate a trial and render it illegal, prejudice to the accused being taken for granted. It is clear from section 221 that the said section applies only to a case where a single act or series of acts alleged against an accused is of such a nature that it is doubtful which of the several offences, the facts which can be proved will constitute. This doubt or uncertainty, no doubt, arises at the commencement of the trial when the charge has been framed against the appellant. And this doubt can be resolved at the end of the trial. The learned State Prosecutor relied on sub-section (2) of section 222 of the New Code. That also, according to us, has no application to the present case. This section corresponds to section 238 of the Old Code. Relying on sub-section, it is argued that the facts proved in the case constitute a minor offence. The minor offence contemplated under sub-section (2) of this section must be a cognate offence in relation to the main offence. In a case where the minor offence disclosed in the evidence is one, the ingredients of which are entirely different from the main offence with which the accused was charged, he cannot be convicted in the absence of a specific charge for the minor offence proved by invoking the aid of sub-section (2) of section 222 of the Code. The major and minor offences must have the main ingredients in common. An accused charged with one offence which is entirely of a different type from the offence which is proved to have been committed cannot in the absence of a proper charge be convicted of that offence merely on the ground that the facts proved constitute a minor offence. Where two offences involve different elements and different questions of facts, one offence cannot be said to be minor to the other. It is with reference to the main major offence referred to in section 222 of the New Code that an offence has to be treated as minor within the meaning of sub-section (2) of that section. We are fortified in our views in this regard by decisions of various High Courts. See Raghunath Singh v. State (1), Kanhaiya Lal v. Feliram (2) Makkhan v. Emperor (3) and Bheemappa v. State of Mysore (4). This apart, the recovery of M.O. 1 and M.O. 7 series has been treated and used by the prosecution only as a piece of evidence in support of the murder charge. In the absence of the charge for robbery or theft, the appellant cannot be convicted under section 411 I.P.C. and in the circumstances of the case, it cannot be said that he has not been prejudiced. The necessary ingredients of the said offence also have not been proved beyond reasonable doubt.

IN THE HIGH COURT OF KERALA

Decided On: 15.06.1977

Vazhambalakkal Thomachan  Vs.   State of Kerala

Hon'ble Judges/Coram:
P. Janaki Amma and S.K. Kader, JJ.

Citation : 1978 CriLJ 498, MANU/KE/0130/1977

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Leading Supreme Court Judgment on basic concept of minor offence under S 222 of CRPC

Section 222(1) of the Code deals with a case "when a person is charged with an offence consisting of several particulars". The Section permits the court to convict the accused "of the minor offence, though he was not charged with it." Sub-section (2) deals with a similar, but slightly different, situation. "When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it."{Para 16}

17. What is meant by "a minor offence" for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence.

18. The composition of the offence under Section 304B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis-a-vis the latter. However, the position would be different when the charge also contains the offence under Section 498A IPC (Husband or relative of husband of a women subjecting her to cruelty). As the word "cruelty" is explained as including, inter alia, "harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

19. So when a person is charged with an offence under Sections 302 and 498A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless all other ingredients necessary for the offence under Section 304B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304B IPC without the said offence forming part of the charge?

20. A two Judge Bench of this Court (K. Jayachandra Reddy and G.N. Ray, JJ) has held in Lakhjit Singh and anr. vs. State of Punjab MANU/SC/0905/1994 that if a prosecution failed to establish the offence under Section 302 IPC, which alone was included in the charge, but if the offence under Section 306 IPC was made out in the evidence it is permissible for the court to convict the accused of the latter offence.

21. But without reference to the above decision, another two Judge Bench of this Court (M.K. Mukherjee and S.P. Kurdukar, JJ) has held in Sangaraboina Sreenu vs. State of A.P. MANU/SC/0816/1997 : 1997CriLJ3955 : 1997CriLJ3955 that it is impermissible to do so. The rationale advanced by the Bench for the above position is this:

"It is true that Section 222 CrP.C. entitles a court to convict a person of an offence which is minor in comparison to the one for which he is tried but Section 306 IPC cannot be said to be a minor offence in relation to an offence under Section 302 IPC within the meaning of Section 222 Cr.P.C. for the two offences are of distinct and different categories. While the basic constituent of an offence under Section 302 IPC is homicidal death, those of Section 306 IPC are suicidal death and abetment thereof."

IN THE SUPREME COURT OF INDIA

Appeal (crl.) 907 of 1998

Decided On: 24.01.2001

Shamnsaheb M. Multtani Vs  State of Karnataka

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Whether offence U/S 366 of IPC can be treated as minor offence to S 366A of IPC?

Here it is useful to refer
the decision in the case of Iqbal Vs State of Kerala
(2008) Cri.L.J. 436 wherein the Hon'able Apex court in
para 9 to 11 observed as under:
“9. The residual question is of applicability of Section 366A
IPC. In order to attract Section 366A
IPC, essential ingredients
are (1) that the accused induced a girl; (2) that the person
induced was a girl under the age of eighteen years; (3) that the
accused has induced her with intent that she may be or knowing
that it is likely that she will be forced or seduced to illicit
intercourse; (4) such intercourse must be with a person other
than the accused; (5) that the inducement caused the girl to go
from any place or to do any act.
10. In the instant case, the admitted case of the prosecution is
that girl had left in the company of the accused of her own will
and that she was not forced to sexual intercourse with any person
other than the accused. The admitted case is that she had sexual
intercourse with the accused for which, considering her age,
conviction u/s 376 IPC has been maintained. Since the essential
ingredient that the intercourse must be with a person other than
the accused has not been established, Section 366A
has no
application.

28. Relying upon the decision in the case of
Bhagwan Laxman Rakshe (supra) learned APP submitted that
in case, it is held that the prosecution has failed to
prove offence under Section 366A
of the IPC against
accused then accused be convicted for the offence under
Section 366 of the IPC by altering the conviction from
Section 366A
into a conviction under Section 366 of the
IPC though no charge is framed under Section 366 of the
IPC. In the said case in paragraph No.17 as referred
earlier in detail it was observed that Section 366 of the
IPC, apart from abduction or seducing a woman to compel
her marriage, interalia, deals with offence of kidnapping
with intention that the woman may be forced to illicit
intercourse. The punishment is prescribed of 10 years for
both the offences under Section 366A
and Section 366 of
the IPC and hence it would be appropriate to convert
conviction awarded under Section 366A
into conviction
under Section 366 of the IPC and as such sentence as
passed by the trial Court was maintained.

29. Here, it would be appropriate to refer three
judges decision of the Hon'ble Apex Court in the case of
Shamnsaheb M. Multtani Vs State of Karnataka (2001) 2
Supreme Court Cases 577 wherein in paragraph Nos.16,17
and 18 of the said judgment the aspect what is meant by a
minor offence for the purpose of Section 222 of the Code
of Criminal Procedure is considered. Said paragraph Nos.
16,17 and 18 read as under:“
16. What is meant by “a minor offence” for the purpose of
Section 222 of the Code? Although the said expression is not
defined in the Code it can be discerned from the context that the
test of minor offence is not merely that the prescribed
punishment is less than the major offence. The two illustrations
provided in the section would bring the above point home well.
Only if the two offences are cognate offences, wherein the main
ingredients are common, the one punishable among them with a
lesser sentence can be regarded as minor offence visavis
the
other offence.


31. From the decision in the case of Shamnsaheb M.
Multtani (supra) it is clear that the test of minor
offence is not merely that the prescribed punishment is
less than the major offence and that two illustrations
provided in Section 222 of the Code of Criminal Procedure
would bring the said point home well. So also, it is
clear from the said decision that only if the two
offences are cognate offences, wherein main ingredients

are common, the one punishable among them with a lesser
sentence can be regarded as minor offence visavis
the
other offence. The ingredients of offence punishable
under Section 366A
are five as referred earlier in
paragraph No.24 (supra) and the ingredients of offence
punishable under Section 366 of the IPC are that; 1.
Kidnapping or abducting of any woman, 2. Such kidnapping
or abducting must be(
i) with intent that she may be
compelled or knowing it to be likely that she will be
compelled to marry any person against her will; or (ii)
in order that she may be forced or seduced to illicit
intercourse, or knowing it to be likely that she will be
forced or seduced to illicit intercourse; or (iii) by
means of criminal intimidation or otherwise by inducing
any woman to go from any place with intent that she may
be, or knowing that she will be, forced or seduced to
illicit intercourse. The main ingredients of these two
offences are not appearing common. The material
ingredients of offence under Section 366A
of the IPC is
the inducement of a girl under the age of 18 years with
intent that she may be or knowing that it is likely that
she would be forced or seduced to illicit intercourse and
such intercourse must be with a person other than the
accused, while material ingredients of offence under
Section 366 is kidnapping or abducting of any woman with

intent that she may be compelled or knowing it to be
likely that she would be compelled to marry any person
against her will or she may be forced or seduced to
illicit intercourse, or knowing it to be likely that she
may be forced or seduced to illicit intercourse.
Moreover, the punishment provided for both the offences
is the same and the punishment of either of these
offences is not less than the other offence. Considering
these aspects and applying the aforementioned
observations of the Hon'ble Apex Court regarding a minor
offence in the case of Shamnsaheb M. Multtani (supra) I
hold that the offence under Section 366 of the IPC cannot
be regarded as minor offence to Section 366A
of the IPC.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.466 OF 2016

Bhagwat Munjabhau Hoge  Vs  The State of Maharashtra 

CORAM : S.M.GAVHANE,J.

PRONOUNCED ON : 07.06.2019

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When it is permissible for court to convict accused of minor offence though he was not charged with it?

 Section 222(1) of the Code deals with a case when a person is charged with an offence consisting of several particulars. The Section permits the court to convict the accused of the minor offence, though he was not charged with it. Sub-section (2) deals with a similar, but slightly different, situation. When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it.

16. What is meant by a minor offence for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis the other offence.

17. The composition of the offence under Section 304-B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis-à-vis the latter. However, the position would be different when the charge also contains the offence under Section 498-A IPC (Husband or relative of husband of a women subjecting her to cruelty). As the word cruelty is explained as including, inter alia, harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Allahabad High Court

Dara Singh And Another vs State Of U.P. on 17 June, 2016

Bench: Amar Singh Chauhan

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What is meant by “a minor offence” for the purpose of Section 222 of CRPC?

What is meant by “a minor offence” for the
purpose of Section 222 of the Code? Although the
said expression is not defined in the Code it can be
discerned from the context that the test of minor
offence
is
not
merely
that
the
prescribed
punishment is less than the major offence. The
two illustrations provided in the section would
bring the above point home well. Only if the two
offences are cognate offences, wherein the main
ingredients
are
common, the one punishable
among them with a lesser sentence can be
regarded as minor offence vis-à-vis the other
offence.”


IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO. 39 OF 2012

Mr. Shrinivas Guramkondu, V/s The State of Goa,

CORAM : U.V. BAKRE, J.
DATE : 17th November, 2014
Citation;2015 ALLMR(cri)1003

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