LexSUNIL KUMAR PAUL versus STATE OF WEST BENGAL
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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 con- viction by High Court to one under s. 420-Legality thereof- Absence 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 rigo- rous 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 purport- ing 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 com- mitted 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 non- trial, under s. 420 I.P.C. In fact, no question of i!Tegu- larity 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 Cal- cutta 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 th
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