When offence proved included in offence charged :
Section – 222. (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduced it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.
Illustrations
(a) A is charged, under section 407 of the Indian Penal Code (45 of 1860), with criminal breach of trust in respect of property entrusted to him as a carrier. It appears, that he did commit criminal breach of trust under section 406 of that Code in respect of the property, but that it was not entrusted to him as a carrier. He may be convicted of criminal breach of trust under the said section 406.
(b) A is charged, under section 325 of the Indian Penal Code (45 of 1860), with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under section 335 of that Code
COMMENTS
LAW COMMISSION REPORTS
Conviction for minor offence when permissible under sub-section (4) – While suggesting substitution of sub-section (3) of old section 238 by new sub-section (4), the Law Commission observed:
“While section 238(3) saves the provisions of section 198 and section 199, it is incomplete in that it does not refer to the other analogous sections which also require a complaint or sanction for taking cognizance of particular offences. For example, sections 195, 196 and 196A also require the complaint of a particular person or authority for the offences dealt with therein: and sections 197 and 197A require the previous sanction of the Government for prosecution in respect of certain offences. It appears to be desirable to make it clear, in section 238, that a conviction for a minor offence is not authorised where the requirements imposed by the law for the initiation of proceedings in respect of the minor offence have not been complied with. This clarification will incidentally help to codify the proposition that ‘section 238 must yield to section 195’- Kantir Missir v. Emperor AIR 1930 Pat. 98. Thus, where the complaint is of an offence under section 211, Indian Penal Code, there cannot be a conviction under section 182 on the ground that the latter is a minor offence. The Supreme Court has also observed that the provisions of section 195 cannot be evaded by the device of charging a person with an offence to which it does not apply, and then convicting him of an offence to which it does, upon the ground that such latter offence is a ‘minor offence’ –Basir-ul-Huq v. State of West Bengal AIR 1953 SC 293.
This aspect of the matter may be illustrated by the facts in a Allahabad case [Narain Singh v. Emperor AIR 1925 All.129]. Wherein a sentence under section 173, Indian Penal Code, was set aside by the High Court. The Magistrate’s explanation, that he took cognizance under section 225B, Indian Penal Code, and convicted the accused under section 173 by virtue of section 238, Code of Criminal Procedure, was not accepted, as there was no complaint of a public servant as required by section 195.