 Today, I just got out of the blue jolt that when I received a message that today there is a session on the letters. I thought it's on the same time, two experts coming on the same time. It will be a difficult chance, but then I realized that the date was wrong. And here we are, first time, what we can say on our platform on a Sunday evening, but which we always find that there's Saturdays and Sundays. Normally what we talk on a week and everybody wants to relax. But I found that the lawyers, students of law and the judicial officers actually latch up the sessions which come on the weekends because of the testing times and testing situations as well as the evolution as a lawyer, what we have grown as the work has increased, we are limping back to normalcy. Whenever we think that we are actually retrieved back, we are back with all vigor. Suddenly there comes another virus. It is as good as what we say as they say, the constitution is a living organ and it continues to evolve. Law is continuously evolving. I feel now even these mutants etc. are also continuously evolving with the flux of time. But thankfully for the last three, four months it's always been better. But all things are said done. But yes, the evolution of the knowledge continues to evolve and which is one thing which we all cherish. And today we take part 10 of the Charge and Discharge series, what we did started on the Beyond Law CLC. We have nine sessions of Justice Veerankumar on this aspect. We have taken, as they say, if you have to understand law, you have to take it into different blocks. And once you take it into the different blocks, even the funnel theory says that you can understand the things better. And what else could be better when you have sessions which have question answers which normally creep up for a professional student and also the judiciary side to be understood by a person like this is Veerankumar. We who can make the things so simplified, it looks what was looking difficult at the first brush has been so simplified. And his sessions are keep on growing with the flux of time. People know that let's assume somebody has heard session number seven. He knows that there are other sessions also. They can always connect with the different sessions of Beyond Law CLC. And if they actually like those sessions, they can always like subscribe and share amongst the different friends. As they say, knowledge improves with the sharing. It's more like a bottle of perfume. The more you open it up, the more it becomes the aroma. And as usual, I will ask Justice Veerankumar to give the insights what we have done so far. And thereafter, we will read the section 222 and questions will be taken by the different participants. Those who actually want to ask their question, they can post it in the chat box. We can ask that speaker to also read that question. If he has those questions, questions shared over there. The questions which we have shared on the platform in the different groups, they can ask the question by posting it in the chat box in advance that he or she wants to ask the question. Without taking much time, I will ask Justice Ramkumar to give the brief overview. Thank you. Thank you, Mr. Rikas. Good evening, friends. We are on the last part of Charge Discharge. We will be exhausting Chapter 17 CRPC with this section. We are only discussing one solitary section, section 222. Before that, let me make a quick recap on the topics covered during the previous session. In the last session, we discussed sections 221 and 223, which are the last two exceptions to the rule of separate trial under section 218, clause 1, CRPC. Discussing the scope of section 221, CRPC, it was noted that the doubt as to which of these several offenses have been committed should arise at the time of framing the charge. While framing the charge, the court should have it out. Which of the two or three or more offenses have been committed in this case? When there is such a doubt, you invoke section 221, clause 1. Then we had seen that section 221, clause 1, CRPC in case of doubt as to which of these several offenses have been committed. The court has the discretion to frame charge, either for all the offenses or for any of the offenses in the alternative. The only rider is that while convicting the accused for an offense, he was not charged with. The offense should be one which the accused could have been charged under section 221. It is only when he could have been charged under section 221 that the court can convict him for an offense which he has not been charged. That has to be borne in mind by judges. It was noted that an accused facing charge for an offense punishable under section 498A, that is matrimonial cruelty. For driving his wife to commit suicide, he can be convicted under section 306, that is abetting suicide without a charge for the same in view of section 221, one CRPC. Incidentally, it was noted that the mere slapping on the face of the wife by the husband amount to an offense punishable under section 323, IPC only. But it may not amount to an offense under section 498A unless the wife has a consequence of the willful act to the husband is driven to cause some harm to herself. For example, somebody slaps his wife. She just suffers in this lab and does not do anything. He can be prosecuted only for 323. It is not matrimonial cruelty. But unable to endure, suffer this lab or the ignominy or the humiliation, she cuts her wane. That is a sort of overt act which has driven the wife to cause some harm to herself. She should cause some harm to herself. Then only in my view, in my respectful view, section 498A is attractive. Otherwise, for a unilateral act, the appropriate offense under the IPC alone will be attractive. It was noted that abetment punishable under section 109CRPC, being a distinct offense, there cannot be any conviction under section 109 without an independent charge for abetment. We discussed a model charge in which an accused person charged under section 302 read with 149 could be convicted under section 302 alone without the aid of section 149. If the charge is appropriately burdened, I gave you an example of how a charge can be appropriately burdened so that even in the absence of even when section 149 becomes inapplicable, he or she could be independently convicted for murder under 302CRPC without any independent charge. We examined in detail the scope of the seven clauses under section 223CRPC. We noted that while the other sections are offense-centric, 223 is offender-centric, whereas 223 is a provision where more than plurality of offenders can be charged together and tried together. We noted that the accused cannot answer for right to demand his trial along with co-accused. He has no right to demand a trial, joint trial. We refer to the famous constitutional bench ruling in the former Maharashtra Chief Minister's case, Air Antulia versus Aras Naik. We discussed the feasibility of consolidation of two cases, one on a police report and the other on a private complaint. We examined the feasibility of joint trial of persons accused of several offenses and also abetment of those offenses. We noted that where objection is not raised at the earliest opportunity regarding misjoiner of charges, joint trial can never be invalid, because misjoiner is an objection which should be raised at the earliest opportunity. If the accused fails to raise it at the earliest opportunity, then separate trial is the rule that cannot be illegal. Today we are discussing section 222, which is only surviving section in chapter 17, which we have not discussed so far. Can anybody read section 222? CRPC, please. Section 222, when offence prove included in offence charged, when a person is charged with an offense consisting of several particulars, a combination of some only of which constitutes a complete minor offense and such combination is proved but the remaining particulars are not proved, he may be convicted of the minor offense though he was not charged with it. Subsection 2, when a person is charged with an offense and facts are proved which reduce it to a minor offense, he may be convicted of the minor offense although he is not charged with it. Subsection 3, when a person is charged with an offense, he may be convicted of an attempt to commit such offense although the attempt is not separately charged. Subsection 4, nothing in this section shall be deemed to authorize a conviction of any minor offense where the conditions requisite for the initiation of proceedings and respect of that minor offense have not been satisfied. You can skip the illustration. Now we pass on to questions on section 222, CRPC, question number one. What is the distinction between this section and section 224, subsection 4 of the CRPC? We discussed the other day section 220, particularly clause 4 of section 220 and this section. Now this section enabled the court to convict the accused for a cognate minor offense. He is charged for the major offense but what is proved by the evidence is a cognate minor offense then even without a charge he can be convicted for the minor offense. Section is attracted in a case where the charge is for a major offense but a minor cognate offense included in the major offense alone has been proved in the evidence. In such a case the accused can be convicted for such minor offense without any separate charge for the minor offense. Example, if the charge is for voluntarily causing grievous hurt by dangerous weapon punishable under section 326 IPC and if the said charge is not made out for the reason that the hurt caused is not grievous but only symbol then the accused can be convicted under section 324 IPC which is a if it is proved which is a minor offense and cognate offense that is the the principle of section 222 CRPC. But in the case of section 224, clause 4 of section 220 out of the several acts either one of such acts by itself constitutes an offense or two or more such acts by themselves constitute an offense or several acts when combined would constitute a different offense. Example, if hurt is caused in committing robbery section 220 clause 4 CRPC is attracted entitling the court to frame charge and convict the accused for the offense of robbery punishable under section 392 and voluntarily causing hurt in committing robbery punishable under section 394 and voluntarily causing hurt punishable under section 323 IPC. So that is the distinction between clause 4 section 220 and section 222. We pass on to question 2, question 2 please. If the accused is charged for the offense of murder and the court finds that he has not committed murder as defined in section 300 IPC but the court is convinced that he has committed an offense of culpable homicide not amounting to murder as defined in section 219 and IPC can the court convict him under section 304 IPC for which there was no charge? See, murder is a major offense. Culpable homicide not amounting to murder is a minor offense. Therefore, every murder includes culpable homicide not amounting to murder also. But culpable homicide not amounting to murder cannot include murder. As in the case of all, all confessions are admissions. All admissions are not confessions. Likewise, every murder is a culpable homicide. But mere culpable homicide not amounting to murder cannot be murder. Likewise, murder being a serious offense, more grave offense. If prosecution is not able to prove the murder, the exact, the strict requirements of section 300 IPC. But it nevertheless falls under section 299, which is of a lesser cognitive offense. Then nothing prevents the court from convicting the accused for culpable homicide not amounting to murder even without a charge for it. That's the beauty of section 222. Suman Sood versus Tito Rajasthan. AIR 2007 Supreme Court, 2007-4. AIR 2007 Supreme Court, 2007-4. Author of the judgment is Justice Siket Thakkar. Question number three. Can an accused charge for offenses and punishable under section 302, 307, 122 IPC and section 27, arms act 1959, and section 5 and 6, read with section 15 of the Terrorist and Disruptive Activities Prevention Act 1987, TADA for short, be convicted for an offense punishable under section 384 IPC, that is extortion. On the first blush, you will say, how can he be convicted in section 384? Maybe because of the gangsters in Bombay, that is Parakara of 57 and 54, Tito Maharashtra versus Bharath Chaganlal Chaganlal Raghani. AIR 2002 Supreme Court, 409, Justice Katie Thomas and R. P. Sethi, author of the judgment is Justice R. P. Sethi. This was the case of the gangsters of the underworld dons of Bombay resorting to quotation killings, et cetera, at the instance of certain money bags. The offense charged was murder, but the offense proved included section 384, extortion. The judges had no difficulty in saying, at least he can be convicted for extortion, which is revealed by the evidence in the case. So he was not separately charged for extortion. Question number four. Somebody else like to read it or should I continue? Can a person charge under section 511 of section 376 IPC attempt to commit rape for kidnapping a minor girl and attempting to commit rape be convicted for offenses punishable under section 354 IPC for outraging the modesty of the and section 366 IPC for kidnapping knowing it to be likely she will be forced to elicit intercourse. The answer is in the affirmative. Yes. Here in this is a, the reported cases, Sir Kehshab Sahu, who is the state of Bihar, 2006, volume 8 SCC 560, Justice Sinha and Justice Dalveer Bandari. Here a minor girl of 12 was kidnapped for committing rape, but due to the human crime raised by the girl, the accused could not succeed in ravishing her. Accused, charged under section 511 of section 376, but convicted under section 366, namely kidnapping or abducting a woman and that so that she may be forced to sexual illicit intercourse and section 354 for outraging her modesty. Though the attempt to commit rape could not be proved, that was treated as a major offense and the other two offenses were treated as minor, cognate offense because the attempt was made for the purpose, for this purpose, after kidnapping her and after subjecting her to outraging her modesty. Therefore, it was held that not understanding the fact that she could not be convicted under section 511 of section 376, she could nevertheless be convicted for the cognate minor offenses, namely 354 and 366. Question number 5. What is a minor offense within the meaning of section 222? You don't find any definition of minor offense in the CRPC. Even though the expression minor offense under section 222 CRPC is not defined, it can be discerned from the context that the test of minor offense is merely that the prescribed punishment is less than that of the major offense. Prescribed punishment is less than that of the major offense. The two illustrations provided in the section will bring the above point very well. Only if the two offenses are cognate offenses wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as a minor offense within the meaning of section 222 CRPC. This was the view taken by Justice R. P. Seti along with Justice K. T. Thomas in Shamsaheb M. Mutthani versus state of Karnataka, A.A. 2002 Supreme Court 409. This has been also referred to in that Bombay underworld case, A.A. 2002 Supreme Court 409. Question number six. Yes, sir. Sir, when the main offense with which the accused is charged is murdered, can he not be convicted of an offense under section 401 IPC by applying section 222 CRPC? 411 is dishonestly receiving stolen property. The charge is for murder. How are they cognate? How are they cognate offenses? Just because he is charged for murder, you cannot convict him for dishonestly receiving stolen property without a separate charge. They are not cognate offenses. The minor offenses contemplated under section 222 clause 2 CRPC must be a cognate offense in relation to the main offense. The major and minor offenses must have the main ingredients in common. This is what the Supreme Court said. I'm sorry, it was what a detachment of the Kerala High Court held in with Omachan versus state of Kerala. And in 78 KLT 354 corresponding to 1978 criminal law journal 498. 1978 criminal law journal 498. The judges were Justice Janaki Amma and S.K. Kader. Justice S.K. Kader is the author of the judgment. It will depend on the facts and circumstances of the case. For example, in the Bombay blast case, we saw that the gangsters could have could be convicted even for extortion under section 384. Though technically you can't call it as a cognate offense. But maybe because of the underworld quotation activities, judges were inclined to convict him for 384 also. Question number seven. So when the accused is charged for offenses punishable under section 304 B IPC, Dory death, section 498 IPC matrimonial cruelty and is acquitted of the offense of higher degree. Section 304 B, can we be convicted for a lesser offense, example 306 IPC? The offenses are 304 304 B, Dory death, 498 A matrimonial cruelty. Then if 304 B is not made out by the evidence, can we be convicted under section 306? Whether it gets section 306, that is attempt to the abetment of suicide. Because 498 A is an offense of matrimonial cruelty wherein the husband or his relatives is the willful conduct of the husband or his relatives is of such a magnitude as to drive the woman to commit suicide or to cause harm to herself. So if the cruelty is of such a magnitude as to drive the woman to commit suicide, then abetting suicide 306 can be treated as a lesser offense, cognate lesser offense within the minimum section 222 CRPs. This is what the Supreme Court held in, K Prema S Rao versus Yatla Srinivas Rao, year 2003 Supreme Court, page 11, year 2003 Supreme Court, page 11, three judges, the author is Justice D. M. Dharmadikari. Yes, in this one more decision, if the prosecution failed to prove the charge under section 302 IPC, the accused was however convicted of the offense punishable under section 306, abetment of suicide. Murder, the prosecution was unable to prove and abetment of suicide was made out or it transpired in the evidence, convicted for 306, abetment of suicide, which was proved in that case. This is relied on in the Bombay Underworld case also. You may refer to Lakit Singh versus Tito Pajab, 1994 supplementary volume 1 ACC 173, 1994 supplementary volume 1 ACC 173. Question number 8. Sir, can that accused charge under section 302 read with the section 148 IPC, be convicted under section 302 read with the section 149 IPC, consequent on it, the total under section 148 IPC. See the charge, that is the distinction between section 148 and 149. 149 is the constructive liability provision, is the provision for constructive liability. If any member of an lawful assembly commits an offense in prosecution of the common object of that assembly, then even if the particular member did not do anything, except he was present and he was physically present, he can be convicted for even for murder committed by another member of the unlawful assembly. He need only be there, physical presence, but he should have shared the same common object of the unlawful assembly. In the absence of a charge under section 149, but the charge is only under section 148, what is 148? 148 is committing, writing armed with deadly weapons. When that is acquitted, in the absence of a charge under section 149, the constructive liability, you cannot convict him. The court cannot convict him under section 302 alone, 302 read with section 149 IPC. This is what the Supreme Court held in. Mohammed Ankous v. High Court of Andhra Pradesh, 2010, Volume 1 SCC 94. 2010, Volume 1 SCC 94. Justice Aram Lotha is the author of the judgment. See, because there should have been a charge under 149. Without a charge under 149, a charge under 148 will not do, will not suffice. There the particular member should have been armed with deadly weapons. That is all. The constructive liability section 149 is not roped in, is not relied on, which is not called into aid by the court. Therefore, you cannot, in the absence of a charge under section 149, you cannot take into, press that section into aid without a charge. Again, the same position was, in fact, this was the earlier case. Four judges decision. Mahadev Sharma v. state of Bihar, AER 1966 Supreme Court 302, AER 1966 Supreme Court 302, four judges. And the author of the judgment is Justice Hidai Tula. This decision was followed in the other decision. The Justice Lotha's Ankous, Mohammed Ankous case. Yes, question number nine. Mr. It's not the court entitled to conduct the accused for the offense punishable under section 304B IPC by resort to section triple to CRPC in a case where the charge is under section 302 IPC. So, the question is whether dowry death is a minor cognitive offense when compared to murder, 302. Even apparently it is not. You can't say that 304B dowry death is a cognate minor offense within the meaning of section 222 vis-a-vis murder. Therefore, Supreme Court held that you can't without an independent charge. Question number 10. Question number 10. Can an accused charged under section 302 red with section 149 IPC be convicted for 302 IPC alone without an alternative charge? Which this we have been discussing right from the time when we discussed the Williams landing was a state of the British. That was a case. We have a constitutional bench. Three great judges of the constitutional bench gave conquering judgments, taking the same view. They said that in the absence of a charge under section 302 Simplicita, independent charge under section 302, just because the accused is charged under section 302 red with 149 and if section 149 IPC becomes inapplicable, you cannot then revert back to section 302 and convict him. No. There should be a separate charge under section 302. This is because by telling him that you are charged under section 302 red with section 149, you are now telling him that you committed murder. As a member of an unlawful assembly, murder has been committed. Either maybe you or somebody else and you are roped in by virtue of section 149. But if the court want to convict that person for murder alone on a particular specific charge, then there should be a specific charge for 302 also because one 149 evaporates. 149 disappears for the reason that either the number of accused persons is less than 5 etc. Then you cannot relate. You cannot go back to section 302 and convict him without an independent separate charge under section 302. We had discussed Nannakchand v. state of Punjab, AR 1955, Supreme Court, 2743 judges, Subran v. state of Kerala, 1993, volume 3 SCC, 32, again 3 judges. Then of course the constitutional bench, Willy Williams-Lani v. state of Madhya Pradesh, AR 1956, Supreme Court, 116. Justice Vivian Bose, Justice Chandrasekhar Iyer, Justice Saeed, Jaffer Imam, rendering, conquering judgments. Yes, pass on to question 11. Accused is convicted under section 302 for the murder of a single victim. Is it not permissible for the court to convict the accused for the offense punishable under section 307, read with section 34 IPC also in connection with the same murder? This is vexing many judges. In one decision, Supreme Court said it cannot be done. Once you convict him for murder, you cannot convict him for attempt to commit murder, as again the same victim for the same act. Once you convict him for 302, then you cannot have a separate conviction for 307. No, but no reasoning. The citation is AR 1993 Supreme Court, AR 1993 Supreme Court, AR 1948, Justice PV Sawant and Justice Mohan. They are the judges, but actually no reasons are given in the judgments for taking that view. In fact, if you section 3 notes, actually the above view is again the principle under section 220, clause 4, clause 4 in section 220, read with illustration M, illustration M to the said section which says that there can be separate convictions for more than one offense for a greater or for a and for a greater offense. When they said one or more offenses are combined if possible, but the above provision does not say separate punishment. The confusion is you cannot punish him twice. You cannot give separate punishment for each of the offenses. For example, in 220 itself, clause 3 we saw that supposing the facts constituting the offense is an offense under two different enactments. Same facts is same two different enactments or under the same enactment IPC itself. You can convict him. You can charge him in the same trial. You can convict him also, but only the rider is only one punishment. Charging and punishing is two totally different things. If that is the and especially if you are awarding concurrent sentence, for example, 307 and 302, you are convicting him and saying that the sentences shall conquer run concurrently for the imprisonment. Then is he really punished? Even if he is punished, he is directed to suffer this sentence concurrently. In fact, that principle you will get under section 26 of the general clauses act. An act may amount to two or more offenses either under the same law or under a different statute, but you can separately convict try. You can charge him, try him and even convict him, but only thing is only one punishment. That is the principle of section 26 of the general clauses act 1897. In fact, very often the confusion arises from the section 71. Illustration A to section 71 says, A gives Z 50 strokes with a stick. Here A may have committed the offense of voluntarily causing to Z by the whole beating and also by each of the blows which may make up the whole beating, 50 strokes, each of them 323. If A were liable to punishment for each blow, he might be imprisoned for 50 years. One for each blow, but he is liable only for one punishment for the whole beating. That is the principle of section 71 regarding punishment, but regarding charge, trial and conviction, this principle cannot be imported. He can be separately charged and in the same trial and even convicted, but punishment only one. In fact, there is one division between the ruling of the Kerala, I go. There are interesting facts. Ramakrishna Paniker versus state of Kerala, 1959 KLT 258 corresponding to A year 1959 Kerala 372, Chief Justice Koshy and Vajalingam. A division between the Kerala, I go. Considered a situation slightly different from illustration 8 to section 71. In this case, the deceased who was found drunk and unable to take care of himself and found behaving in a disorderly and the righteous manner on a public road was apprehended and removed to the police station. While at the police station, two police constables, that is A1 and A2, belabored him. One of them slapped twice on his cheeks. They fisted and elbowed on his back and abdomen and the deceased who had an enlarged spleen unknown to the assailants, he succumbed to the injuries. They were charged for culpable homicide, not amounting to murder and section 323 for each blow. The trial court convicted them for both offenses and sentenced them to rigorous imprisonment for four years and six months respectively for 304 part 2 and 323. In appeal, the division bench held when a person inflicts several blows on another and one or more of those blows prove fatal. It is not lawful to have one charge with respect to the fatal blow and another charge with respect to the other blows. A separate charge under section 323 IPC is thus uncalled for and the conviction and sentence for that charge is unsustainable. In fact, it was held that since the accused persons, police constables did not know that he was ailing under that infirmity of enlarged spleen and they only gave a fisting or a slap or I'm sorry fisting or a fist on the abdomen. But the resultant cause, they did not anticipate and he died of that because of the ruptured spleen. He had an enlarged spleen which was not known to the accused. The court division bench held that he can be convicted only for 320 voluntarily causing hurt and the majesty of law. Then other there are other registrations also intersection and other decisions also in one decision Supreme Court said causing death by a firearm is punishable under section 302 IPC because death is caused murder and section 273 of the arms act. If a death is caused by using a firearm, then it is an offense under section 273 of the arms act also. But accused can be charged and convicted for both the offenses. A year 2002 Supreme Court 260 but when you award the punishment, they can be punished only once one punishment because of the principle under section 26 of the general clauses act 1897. Then again striking a person with a cane can amount to both section 352 IPC that is assault and criminal force and section 323 IPC voluntarily causing hurt. The offender can be separately charged and convicted under both the section. This is what illustration I to section 220 CRPC itself says but he can be separately charged and convicted. Anything is one punishment while imposing punishment you go back to Indian penal court not to CRPC. Then again accused a private person uses a forgery document as genuine with a view to convict a public servant under section 167 IPC. Public servant framing an incorrect document with intent to cause injury. He uses a forgery document against a public servant with the view with a view that public servant will be convicted for an offense under 167 IPC. The accused can be separately charged with and convicted under section 196 IPC for using evidence known to be false and section 471 IPC using as genuine a forgery document. Both are attracted for the same act and you may see illustration L to section 220 CRPC. So nothing wrong in separately charging him and convicting him in the same trial. Only thing is while imposing the punishment you stick to section 26 of the general laws act and also section 71 of the Indian penal court. Question 12. Sir the charges that the accused committed the murder of her husband punishable under section 302 IPC and also caused disappearance of the evidence of murder punishable under section 201 IPC. Accused acquitted of offense of murder. Can she be convicted under section 201 of IPC sir? Yes, yes this question in a different form was discussed by me on an earlier occasion. Here the offense the wife is charged for murder of her husband under section 302 IPC and then causing disappearance of the evidence of murder punishable under section 201 IPC. The trial judge held that the murder has not been proved against her. She was acquitted of the charge of murder. But the trial judge convicted her for 201 causing disappearance of the evidence of murder. She filed an appeal before this high court. This happened in Kerala. In fact the wife, the accused was the wife of the lawyer in Aduki. He was a very resourceful Aduki. I have seen him in action. Very resourceful lawyer on the criminal side. But he used to consume alcohol. Once he consumes alcohol and reaches home he becomes a devil. So he was unable to wear with his battery. The allegation was wife and her for this committed murder of the person. And she was charged under 302 and tried with 201. She was acquitted of the murder but convicted under section 201. She took up the matter in appeal. The appeal came up before Justice Katie Thomas then of the Kerala High Court. Her argument was very attractive. She said, I have been acquitted of murder. When I have been acquitted of murder, where is the question of my causing disappearance of the evidence of murder? That was her argument. Justice Thomas said nothing to him. Even if you are acquitted of murder there can be a situation where you can cause disappearance of the evidence of murder. And the conviction by the trial date was confirmed by Supreme Court. Matter was taken up in, I think it is. Yes, it was confirmed by Supreme Court also. The Kerala High Court decision is Tresa v. State of Kerala, 1991. Volume 1 KALT 503. Justice Thomas is the author of the judgment. And it was confirmed by Supreme Court speaking through Justice Umesh Banerjee, T. L. Tresa v. State of Kerala, A. R. 2001 Supreme Court, 953. 2001 Supreme Court, 953. There are other decisions of Supreme Court also on the same point. Sukram v. State of Maharashtra, A. R. 2007 Supreme Court, 3050. A. R. 2007 Supreme Court, 3050. Again by Justice Arijit Pasai, A. State of Karnataka v. Modesa, 2007. Volume 7, S.E.C. 35. Justice Arijit Pasai, then Justice Naulik. Yes, question number 30. Sir, would it make any difference if the charge is only for murder and accuses acquitted of murder but convicted under section 201 ITC, that is for causing disappearance of the evidence of murder without an independent charge? It wouldn't because without an independent charge also he can be convicted for 201 which was considered to be a cognate and minor offense compared to 302 in Kalawati v. State of Himachal Pradesh. A. R. 1953 Supreme Court, 131. Constitution bench. A. R. 1953 Supreme Court, 131. Constitution bench. Five judges. The judgment is by Justice N. Chandrasekara here. Question 14. Sir, give other illustrations for the applicability or otherwise of section 222. Yes, I will give a few more illustrations of a minor offense being an accused being convicted of a minor offense without an independent charge because he is a cognate offense included in the main offense. On a charge under section 407, that is criminal breach of trust by a carrier, there can be a conviction under section 406 IPC near criminal breach of trust. Simplicitor. Illustration A to section 222 CRPC itself. See illustration A to section 222. Then on a charge under section 325 IPC, voluntarily causing grievous hurt, there can be a conviction under section 335 IPC, voluntarily causing grievous hurt on a provocation which is considered to be even the lawmaker considers it to be a cognate minor offense and can be convicted under section 335 without an independent charge. Wide illustration B to section 222 CRPC. Then third is on a charge under section 511 of 376 attempt to commit rape. There can be a conviction under section 509 act intended to insult the modesty of a woman. There can be, which is a a cognate minor offense. AR 1961 Alehubad, AR 1961 Alehubad 131 corresponding to 1961 criminal law journal 330, 330. Then on a charge under section 406 criminal breach of trust for refusal to return gold necklace, there can be a conviction under section 403 dishonest misappropriation. When you refuse to return it amount to misappropriation. So, and section 420 also cheating and dishonesty including delivery of property. AR 1960 Alehubad, AR 1960 Alehubad 387 corresponding to 1960 criminal law journal 857. Then on a charge under section 402 IPC that is assembling for the purpose of committing decoyty. There can be a conviction under section 147 and 148 writing by any member of an unlawful assembly armed with deadly weapons. AR 1962 Alehubad 13 corresponding to 1962 one criminal law journal page 3. On a charge under section 302 causing murder. There cannot be a conviction under section 411 IPC for dishonestly receiving stolen property. 1978 criminal law journal 498 Kerala. He is charged for murder. He cannot be convicted for dishonestly removing dishonestly receiving stolen property punishable under section 411 CRPC without a charge. On a charge for attempt to commit an offense. There cannot be a conviction for abetment of the offense. Attempt and abetment are two different things. AR 1924 Bombay 432 again AR 1927 Calcutta 63 and in 27 Calcutta 63. Then an accused charged for the offense of penetrative sexual assault under section 3 of POXO Act 2012. On a child and punishable under section 4 of POXO Act can be convicted for the offense of rape under section 376 without an independent charge. Y.D. Loganathan v. State 2019 criminal law journal 633 2019 criminal law journal 633 that is a division bench spoke speaking through Justice Nagamutu. Justice Nagamutu was speaking for the bench. These are a few illustrations falling under section 222 with that we have come to the close of chapter 17 of this year on charge and discharge. We have to start this part. Hopefully so. And we have Pandya who will ask the question himself. Good evening sir. My question is, the trial code has framed a charge under section 306 of IPC. Whereas it has connected the person under section 354 and 448 against which I have preferred appeal. While hearing the appeal, the appellate code granted suspension of sentence and came to the conclusion that there is ample evidence to connect the accused under section 306 of IPC. But unfortunately no appeal is preferred by state. Whereas the appellate code by exercising Sumoto revision take the director of the registry to number the Sumoto revision. When the matter came up at the final hearing stage, I argued before the Madrasa code where the Madrasa code held that the Sumoto revision of power can be exercised and the accused can be connected under section 306 despite he has been acquitted under the same provision, whether it could be correct or not. Probably 37 section 377 CRPC was removed, did not. Inadequate sentence. No. No conviction also different. Conviction is different. 354, 354, 448. The prosecution case is thus a lady. She was at the secluded place. The accused attempted to commit outraging of modesty. She raised alarm. Thereafter, she went away because all the peoples are gathered there. Yes. The lady on the whole day was weeping. Next day morning, she carried her children and left to the place to some far away and committed suicide by consuming poison and also she administered poison to the children. That was the prosecution case. 306 charge was framed. The trial code found that there is no evidence for 306 because the Visara report has not been marked. On that basis, the trial code acquitted whereas the accused was convicted under section 354 and 448. This is the situation. But I think if the charge was sufficiently eloquent, the court charge was sufficiently eloquent to bringing these aspects also in the charge and the accused had an opportunity to meet that allegation also contained in the charge. Nothing wrong in convicting. Charge is there. Charge is there, no doubt at all. But my question is only 306 alone has been charged. Now the settled position is that 302 reduced 149. Yes. Ultimately, the court finds that 149 is not applicable. Then you cannot convict the accused under 302 without an independent charge under 302. Therefore, the settled position is that it should be charged under section 302 IPC and 302 red with 149. So that if 149 becomes inapplicable, you can revert back to 302. That is the settled position. I gave you the other day an illustration. Supposing in the charge itself, the court says that five of you formed an unlawful assembly, the common objective of committing murder and such other offenses. A1 in prosecuting of the common objective of the assembly gave the penetrating, inflicted the penetrating stab injury on the victim. And you have therefore committed an offense red with section 302 red with 149. In such a case, A1 cannot escape even if 149 becomes inapplicable. A1 cannot escape because charge itself is eloquent enough to say that his independent over-tact is also mentioned in the charge. Likewise, if the independent over-tact of outraging the modesty, etc., have been mentioned in the charge, he has sufficient notice. What is the purpose of charge? Can he be convicted without the question of sentence, that too by High Court? Without? Without question of sentence. Question of sentence? Without questioning him? Questioning him for the sentence. Because the High Court convicted under section 306, whereas the trial court found that he is innocent for 306. High Court says High Court has inherent power or sumo power. By exercising the same, it can convict. That is what? Test case, you will have to take it up to Supreme Court. According to me, if the court charge was elaborate enough to mention those activities also, that is, outraging the modesty, etc., in the mentioned, though the section is not mentioned, though the section is not mentioned, then he had sufficient purpose of charges to give him notice, the case which he has to meet with. Supposing he had given, he was given that notice. He had the, he was informed of the case he was to meet, though specifically not charged for certain offenses. Then he, and if he did not take objection during the trial also, probably there are decisions to effect that. He cannot thereafter turn around and say that, no, no, I had no notice, because the charge is sufficiently eloquent. That is why I gave an illustration the other day, you know, to reduce one point. Indoubtedly, charge is very eloquent, as your charge stated. But my question is, by exercising sub-motor revision power, how the court can convict? That was my argument. Sub-motor revision power can be exercised even beyond the period of limitation. See, for filing a revision, there is a limitation, described under the Limitation Act. But if the court is exercising sub-motor revision, even the limitation is not applicable to the sub-motor. As you have not preferred appeal. Calendar revision, not necessary, not necessary. What cannot be done directly, cannot be done indirectly. That is what I made up. I made a submission like that. Yes. Because while sitting under appellate portfolio, simultaneously that power cannot be exercised. That is what my submission, that judgment was issued in the live law also. Formerly, formerly it was 377 used to be invoked only by the ICO. Now after the amendment, even session judges can invoke that power. Yes. That is what my question is. You will wait for the authoritative pronouncement by the appellate court, in case you are taking it to the Supreme Court. Thank you, sir. Thank you. This is by Prashant. Accused was charged under the offence under section 4. Section. Accused was charged for the offence under section 420 IPC. Prosecution failed to prove the ingredients of the offence under section 420 during the trial. But successful was improving the ingredients of 405 IPC. Can the court convict the accused under section 405, though he was not charged with the offence? We have seen that. We have seen that situation. 405 criminal, bridge of trust. This is whether the order under section 91 CRPC in magistrate court is intermediate order or interlockery order. Whether we have to go for a criminal appeal or criminal revision? It all depends. Supposing the order under section 91 is directing the accused to produce a document, which if produced will convey his knowledge, his information about the facts, about the contents of the charge. Then going by Shyamlal Mohanlal's case, 1965 Supreme Court Constitution bench, he cannot be called upon to produce a document either by the police officer or by the court. And if he is under section 91, he is called upon to produce. Then you can't say that it is an intermediate order. As far as the accused is concerned, it is an order violating his right under article 23 of the constitution. And he can certainly challenge it because of the constitution bench ruling. But not all orders. All orders may not come under the expression final order. Vikas says whether evidence can be given during charge framing in questioning as police never filed accused evidence. If so, why should the accused be suffered because of the fault? Any fault? It's the miscarriage of justice as to submit the evidence and the defense evidence stage. Now that is the, in the light of state of Orissa versus Devendra Nath Padish case, 2005 Supreme Court, we cannot break up that issue unless a larger bench of the constitution holds otherwise. Because at the stage of framing charge, the accused cannot reduce any evidence because the wording of the section itself, after, see section 227, for example, in sessions trial, if upon consideration of the record of the case and the document submitted therewith, record of the case means prosecution records only and the document submitted therewith. Then the, in earlier Supreme Court held that after hearing the submissions of the accused and the prosecution, so there is a chance for the accused to give submission. Therefore, interpreting that expression in earlier 96, in 96 Supreme Court held that accused can also lead evidence. But then that was overruled by the constitution, by the treated bench to hold that. No, hearing the submissions of the accused only with regard to the record of the case. Accused can also make a submission, but not only submission, not produce a document. He can only make a submission with regard to the record of the case. Even if you accept the prosecution record, no case is made out against me, that he can argue. But he cannot try to disprove the record. In fact, I have been straining at length during the initial stage of this lecture to make you understand that at that stage, accused cannot, because of the wording of the section itself, record of the case. What is the record of the case? Record of the case is the charge sheet and the document produced therewith or private complaint and the document produced along with that, nothing more, nothing less. But he cannot create record and make his submissions. That is not permissible. That is how the section has been interpreted by a larger bench overruling 96 superingots. This is by Ishaan F. Pulas or the complainant made a cutting in the original complaint based on which the FIR was registered. Complainant? What if I didn't get you? If the police or the complainant actually cutting in the original complaint based on which FIR was registered, whether the case of forgery can be booked? Police or original complaint? Complainant doing what? Had tampered with the original complaint. Yes. Whether case of forgery can be lodged against them? Definitely, definitely. Only thing is it should not fall under section 195-1B2, 195-1B, CRPC, because it's not done in the course of judicial proceeding. Only if it is done in the course after the production of the document in court, then only 195-1B will be attracted and the court will have to be the complainant. Otherwise, the person agreed will have to lodge the complaint. Definitely. In fact, our KVJ Rao, Mr. KVJ Rao had a similar allegation, similar grievance that the police officer or the magistrate himself made some corrections in the. Am I right, Mr. Rao? No, he put in a prayer that didn't exist, which I had not made. So we say, I challenge that saying it, how can you do like it amounts to forgery because I've not made that prayer. So how could we include that prayer in the order? Yes, a non-existing prayer. He had added a prayer. Yes, he's added a prayer which I had not made also. And we have taken it up with the Chief Justice. Let's see what happens. This last question, sir, while considering the bail application, is the court correct in rejecting the bail considering the gravity of the offence alone? That is usually done considering the gravity of the offence courts are rejecting the bail application. But actually, the consideration should be whether whatever may be the gravity, he is insulated by the presumption of innocence. Therefore, the only question germane for the court to consider is whether this person will be available for trial or whether he will abscond. He will jump bail. If he is available for trial, bail is the rule. Jail is an exception. That's what Justice Krishna had said way back in 1977. But unfortunately, and of course, in the case of habitual offenders, you cannot conclude that he will not commit any offence while on bail. That's a straight jacket case that can't be made. Yes, but habitual offenders, you will have to court act to be very circumvent. Once he's granted bail, he will jump and not only he will not be available at all. And the counsel will be in difficulty. And also, he might commit another offence on while on bail. Definitely. He's an habitual offender. In the case of habitual offenders, I used to tell you, it is a habit. You cut the edge from habit. A bit remains. You cut the A from habit. Bit remains. You cut the B from habit. It remains habitual offender. This is why Arun Pratap is section 420 IPC and 138 Act are different offences. But can they accused be convicted in both offences? How can it be? 138 is a private complaint. There cannot be a police charge. There cannot be a police charge. Whereas 420, there can be a police charge. Of course, there can be a private complaint also. But a conviction under both may be difficult. Unless the difficult, very difficult. I think there are decisions on this. Unless you can prove that it is not the same offence. Because general clauses 26 goes on the premise of same offence also. Yes. Yes. The definition of the fact constituting the same offence under two different enactments. Correct. True. Even then, you can convict. Even then, you can convict only one punishment. Like because we have a problem here. So aviation rules do not provide for imprisonment or any such thing. Just pay up fine and you're allowed to go. How can the rules prescribe the penalty? The act should prescribe the penalty. Yeah, the act, the aircraft act, read with the aircraft rules. It describes the penalties under schedule in the schedule. But that is like 50 rupees, 100 rupees. Long back. So we have to bring it under the ambit of 336. Yes. So when two enactments are there, we rather end the institute of chartered accountants. It was held that the trial court is to limit itself to IPC sections and not under any other act. I don't know that. That is the Supreme Court judgment. Were it considered? Toho had considered the customs act. It considered the seafarers act. All these acts were considered and they came to a conclusion that the trial court should limit itself to only section of the IPC. Why? Why? I really don't know, sir. Because under the act, that component, the penalty has to file the complaint. Then initiation may be defective. Then what happens, sir, if that person doesn't do, that person goes away scot-free. So that is why if the act also forms an act under the IPC, then the trial court can take cognitions of the offense. For example, 188 IPC. The public servant alone can, but IPC is very clear that 195 is clear that his official superior also can initiate if he does not do. The public servant concerned does not do. His official superior also can initiate action, can be moved. Yes, sir. That's why they discussed Threadbearer Institute of Chartered Accountants versus Rimal Kumar Surana as to how we should go under 195. Yes. So that's very described very thoroughly Which year, Mr. Traw? I think I have missed that. You will share the judgment later on. Meanwhile, Ishaan says a person got two Adhaar cards by using force documents. Is the same crime or court says without any profit or injury to another person, it does not fall under crime? How do you decide as to which one is genuine? How do you decide as to which one of the two is the real genuine one? It is like a 164 treatment and a testimony in court. A witness may give a 164 treatment before the magistrate. That is very often he is confronted with while in the witness box during trial. And if he is to be prosecuted for perjury, courts have taken the view that without knowing as to which of the versions is the genuine version or he has spoken truth before the magistrate or before the trial court, you cannot convict him for perjury. Likewise. Sir, the judgment is in 1st December 2010. Author is Justice G. Singhvi. Reported, no? Yeah, it's reported. I would like to know this. I did. You can give me privately. Ishaan chatted accountants of India versus Rimal Kumar Suranas. Thank you. Thank you, Mr. Traw. They considered a lot of other acts in relation to IPC. Okay. Somehow it has escaped my notice. Sir, I had to rely on it because mine is multiple enactments. Sir, this is section 91 CRPC filed by accused requesting for something of documents from police and prosecution. Magistrate rejects the request, whether the accused has to go in a criminal appeal or criminal region. If it is at the stage of framing charge, he will not succeed. At the stage of framing charge, he will not succeed. His opportunity to produce evidence arrives only when that is what the Supreme Court said in state of Orissa versus Devendra Nath Pathy, 2005 Supreme Court. He cannot even invoke section 91 CRPC for causing production of a document to substantiate his case that the evidence produced by the prosecution is false. He cannot do that. He can do that only at the appropriate stage of defense evidence. He says after charge during the trial. Shoaib asked your question. Good evening, sir. Good evening, Shoaib. I hope you're doing good, sir. I have a small question, sir. In the illustration and this long lecture you gave, sir, isn't it mandatory for the court who is framing the charge to have an alternate charge frame for the minor offense as well? The reason as to why I ask so because when a accused person is facing the trial, he is entitled to know the allegations against him, the facts, the time of the offense, the date of the offense, the occurrence, the manner of the offense and everything. For the purposes section 222, it's not necessary because the time of offense, the ingredients of the major offense are all there in the charge and what is made out in the evidence is only the minor offense. Major offense, the prosecution has not been able to prove but minor offense forming a part of the major offense is proved. For that, no separate charge is to be framed. Not necessary. Of course, by way of abundant caution, if a judge is able to foresee, if a judge is able to anticipate that such a minor offense is also capable of being tried, that is why in section 221, we saw that he can be convicted for an offense for which he could be charged. He could be charged together. That's what section 221, we discussed that. Clause 4, clause 4 of section 221, that is when the court is in a doubt as to which of the offenses has been committed, then supposing three offense, the on the materials court can frame charge for three offenses, but court frames charge only for one offense, then 221, clause 4 says that the court can convict him for the offense for which he has not been charged, provided that he could have been charged for that offense under 221-1. So thank you, sir, for giving your insights and as usual, Mr. Rao chipped in the valuable inputs at the same time. We are blessed to have the sessions from you. Thank you, everyone. Stay safe. Stay blessed. Namaskar.