Mulla, J. - (1.) This is an application of revision filed by one Ganga who was convicted under Section 379 I. P. C. by the Railway Magistrate, Lucknow, but the learned Sessions Judge when the case came up in appeal before him altered the conviction to one under Section 411, I. P. C.
(2.) Briefly stated the facts of the case are that one Sri Mathur, a passenger, was travelling by a train and one Latif picked his pocket at the Charbagh platform. Sri Mathur immediately detected the loss of his purse and he found Latif and the applicant running away together. He raised an alarm and pursued the two and the other persons present on the platform also joined in this pursuit. Latif and the applicant were arrested and then their persons were searched. The purse was found on the person of the applicant. Sri Mathur had further stated that he saw Latif handing over the purse to the applicant. It was on this basis that both Latif and Ganga were prosecuted. The Magistrate came to the conclusion that the two Were acting in concert and so convicted both Latif and Ganga under Section 379 I. P. C. The appellate court maintained the conviction of Latif under Section 379 but altered the conviction of Ganga to one under Section 411 I. P. C.
(3.) The counsel for the applicant has contended before me that the appellate court was not justified in making this alteration under the provisions of Section 237 Cr. P. C. He contended that Section 237, Cr. P. C. can be acted upon only by the trial court and the appellate court cannot act under the provisions of this Section. For this contention reliance was placed upon certain observations of a learned Judge of this Court reported in Mangal Singh v. Rex AIR 1949 All 599 (A). The learned Judge who decided this case observed as follows: "It is to be seen whether the convictions under Section 379 and Section 379/114, Penal Code, can now be substituted in place of the convictions recorded by the Courts below. The applicants were never charged under these sections. They were charged under Sections 411 and 411/109, Penal Code. The only section under which conviction under Section 379 can be recorded by an appellate court or by a court of revision in place of a conviction under Section 411 is Section 237, Cr. P. C., if at all. Section 237 applies only in a case which is governed by Section 236, Cr. P. C. It is to the effect that: 'If a 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'." Proceeding further the learned Judge made some observations to the effect that it was the trying court and the trying court alone which could say whether it entertained any doubt on the question which of the offences were constituted by the facts which had been proved. He came to the conclusion that it was not for another court, however superior it might be to say that the trial court should have entertained a doubt on this question. In my opinion the observations of the learned Judge amount to obiter dicta and they do not lay down the rule of law. With respect to the learned Judge, I disagree with the opinion expressed by him. In my opinion, the powers of an appellate court are defined under Section 423 Cr. P. C. The relevant parts of Section 423 for this question are Sub-sections (b) and (d) of Section 423 (1). These two sub-sections run as follows: "(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a court of competent jurisdiction subordinate to such Appellate Court or committed for trial or (2) alter the finding, maintaining the sentence, or with or without altering the finding, reduce the sentence (d) make any amendment or any consequential or incidental order that may be just or proper." It seems to me that under Sub-clause (2) mentioned above an appellate court is entitled to alter the finding and altering the finding includes the application of a different penal provision to the admitted facts of the case. There are several decisions on this point and there are two views held by the High Courts. The first view is that the powers conferred on the appellate court are not restricted by the provisions of Sections 234 to 238 of the Cr. p. C. The other view with which I find myself in agreement is that these powers are only restricted by the provisions of Sections 234 to 238 of the Cr. P. C. In other words, in all those cases in which the trial court could utilise the provisions of Sections 236 and 237 the appellate court also can do the same. I am fortified in this view by a Bench decision of the Calcutta High Court reported in Lala Ojha v. Queen Empress ILR 26 Cal 863 (B). The learned Judge observed: "If the prosecution establishes certain acts constituting an offence and the Court misapplies the law by charging and convicting an accused person for an offence other than that for which he should have been properly charged, and if notwithstanding such error the accused has by his defence endeavoured to meet the accusation of the commission of these acts, then the Appellate Court may alter the charge or finding and convict him for an offence which those acts properly constituted, provided the accused be not prejudiced by the alteration in the finding. Such an error is one of form rather than of substance, and the alteration by an Appellate Court of the charge or finding would not necessitate a retrial expressly on a charge of that offence." There are other decisions also which have followed this decision but I need not enumerate them. The learned Judge who decided Mangal Singh's case did not discuss the provisions of Section 423 (b) or (d) when he came to the conclusion that an appellate court cannot utilise the provisions of Section 237, Cr. P. C., to correct an error in applying the relevant law.;