Rex v Patel and Another (Cr. App. Nos. 4/1935 and 5/1935) [1935] EACA 138 (1 January 1935)

## APPELLATE CRIMINAL.

Before SIR JOSEPH SHERIDAN, C. J. and GAMBLE, Ag. J.

REX, Respondent (Original Prosecutor)

MAGANBHAI VALABHBHAI PATEL and HARIBHAI APABHAI AMIN, Appellants (Original Accused).

Cr. App. Nos. $4/1935$ and $5/1935$ .

- Criminal Procedure—Charge of breaking into a building and committing felony—Conviction for receiving—No formal charge— Penal Code sections 282, 295—Criminal Procedure Code section 174. - $Held$ (9-3-35).—That on a charge of house breaking a person cannot be convicted of receiving.

Kasliwal, for the appellants, referred to Criminal Procedure Code sections 173-181, Russell on Crimes, II, 1806.

Dennison, for the Crown, referred to Archbold (28th Ed.), 752. R. v. Bailey (13 Cr. App. R. 27).

JUDGMENT.—The appellants were charged with the felony of breaking into a store and committing a felony therein contrary to the provisions of section 282 (1) of the Penal Code. Before entering upon their defence counsel on their behalf submitted that the evidence did not support the charge. The Police prosecutor submitted that there was "ample evidence for a charge of theft or receiving. But there is ample evidence of store breaking". Thereafter counsel for the appellants asked that they should be formally charged with the offence they were alleged to have committed so that they might be enabled to answer the particular charge. This was eminently a reasonable request but was refused by the learned magistrate who gave as his only reason that the appellants had been charged at the beginning of the case. True they had been charged, but under section 282, and as the prosecution had intimated the possibility of a conviction for theft or receiving stolen property with guilty knowledge what was the objection to framing charges under the appropriate section? A refusal to do so after request by counsel was not justified. Eventually the appellants were found guilty of receiving. Had they been found guilty of theft despite the failure to frame a charge, such a finding would probably have been competent by reason of section 174 of the Criminal Procedure Code which provides:-

"When a person is charged with an offence, and part of the charge is not proved, but the part which is proved amounts to a different offence, he may be convicted of the offence which he is proved to have committed, although he was not charged with it."

But section 174 cannot be invoked to support a conviction for receiving where an accused is charged with store breaking, and a perusal of the other sections in the Miscellaneous provisions of the Code setting out those offences of which an accused person may be found guilty though charged with a different offence shows that a person charged with house breaking cannot be convicted of receiving where not charged with the latter. The omission to charge the accused with the offence of which they were found guilty is in this instance a fatal defect which vitiates the trial. The convictions and sentences must therefore be set aside and the appellants discharged. This Order leaves the Crown free to take such further proceedings as may be considered advisable.