The alteration of a conviction from one section to another is not illegal if it is not an alteration in the substance of the accusation but only in the section more properly applicable to the facts found.

Headnote:
CALCUTTA MUNICIPAL ACT, 1923 - Ss. 299, 300, 488(1)(c) - Notice under S. 299 - Conviction under S. 300 - Legality - Alteration of conviction - Prejudice - Limitation.
Fact of the Case:

The appellant encroached upon the road-side land of the Howrah Municipality. A notice was served on him to remove the encroachment under S. 299 of the Calcutta Municipal Act, 1923. He failed to comply with the notice and was prosecuted under S. 488/300 of the Act. The Magistrate convicted him, but the Sessions Judge acquitted him on the ground of limitation. The High Court set aside the order of acquittal and directed the appeal to be reheard. The Additional Sessions Judge confirmed the conviction and the sentence. The High Court agreed with the lower Courts on the merits but altered the conviction from S. 299 to S. 300, read with S. 488 of the Act, and reduced the sentence to Rs. 50. The appellant challenged the legality of the conviction and the alteration of the conviction.
Finding of the Court:

The Supreme Court held that the alteration of the conviction from S. 299 to S. 300 was not an alteration in the substance of the accusation but only in the section more properly applicable to the facts found. The notice served upon the appellant was lawful within the meaning of S. 488(1)(c) of the Act, as it clearly required him to remove the encroachment caused by the compound wall. The prosecution was not barred by limitation as the additional evidence adduced at the appellate stage showed that the complaint had been lodged in time.
Issues: 1. Whether the alteration of the conviction from S. 299 to S. 300 was legal? 2. Whether the notice served upon the appellant was lawful within the meaning of S. 488(1)(c) of the Act? 3. Whether the prosecution was barred by limitation?
Ratio Decidendi: 1. The alteration of the conviction from S. 299 to S. 300 was not an alteration in the substance of the accusation but only in the section more properly applicable to the facts found. A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence in such as to establish a charge that might have been made. 2. The notice served upon the appellant was lawful within the meaning of S. 488(1)(c) of the Act, as it clearly required him to remove the encroachment caused by the compound wall. It is the substance and not the form of the notice that has to be regarded. 3. The prosecution was not barred by limitation as the additional evidence adduced at the appellate stage showed that the complaint had been lodged in time.
Final Decision: The appeal was dismissed.

Judgment

SINHA, J. : This appeal on a certificate of fitness granted by the Calcutta High Court under Art. 134 (1) (c) of the Constitution, is directed against the judgment and order of a Single Judge of that Court in its criminal revisional jurisdiction, convicting the appellant under S. 488/300 of the Calcutta Municipal Act, 1923 (which will hereinafter be referred to as the Act), and sentencing him to a fine of Rs. 50, in substitution of the order of conviction under S. 488/299 of the Act, of a fine of Rs. 75, passed by the lower Courts.

2. The facts found by the Courts below which are necessary to be stated for the purpose of this appeal, are as follows: The appellant who is the owner of the premises No. 10/3, Swarnamoyee road Howrah, encroached upon an area of 57 x 3 of the road side land of the Howrah Municipality to which the provisions of the Act have been extended. A notice, the terms of which we shall set out hereinafter, was served on the appellant to remove the encroachment aforesaid, and as he failed to carry out the terms of the notice within the specified time, the prosecution leading upto this appeal , was instituted before the Magistrate who under S.531, is called Municipal Magistrate . The municipal Magistrate who tried the appellant in the first instance, convicted him, but on appeal, the learned Sessions Judge acquitted him on the ground that the prosecution had been launched beyond three months which was the prescribed period of limitation under S. 534 of the Act. The Municipality moved the High Court of Calcutta in its revisional jurisdiction and a Division Bench of that Court (J. P. Mitter and S. K. Sen, JJ.), set aside the order of acquittal and directed the appeal to be reheard, after giving the Municipality an opportunity of formally bringing on record certain official documents showing the date of the institution of the complaint. The relevant documents were proved and exhibited on behalf of the prosecution in the Sessions Court and the learned Additional Sessions Judge confirmed the conviction and the sentence, and dismissed the appeal. Thereupon, the appellant moved the High Court in its revisional jurisdiction. His application in revision was heard and disposed of by P. N. Mukherjee, J., by his order dated February 2, 1955, which is the subject-matter of this appeal. Before him, the appellant as petitioner, urged at the forefront of the arguments, the question of limitation, and the learned Judge took the view that the matter was now concluded in view of what had taken place in the High Court and in the Court of Session in pursuance of the order of remand passed by the High Court. The learned Judge agreed with the appellate Court that the complaint was not barred. The High Court also agreed with the lower Courts on their findings on the merits, that is to say, it affirmed the finding that the appellant had encroached upon the road-side land of the Municipality. The High Court accepted the argument raised on behalf of the appellant that on the facts found, namely, that the offending structure was a compound wall and not something which was a part and parcel of them main building, the offence if any, would come under S. 300 and not S. 299, read with S. 488 of the Act. The High Court further took the view that as the accused was fully aware of the nature of the accusation against him, it would not cause any prejudice to him if the conviction and the sentence were altered into those under S. 300, read with S. 488 of the Act, the sentence being reduced to the statutory limit of 50 rupees. The appellant moved the High Court and obtained the necessary certificate from the Bench presided over by the learned Chief Justice who observed, while granting the certificate:

"It seems to me to be arguable and arguable with some force that such alteration of the conviction could not possibly be correct in law.......It would therefore be arguable that a notice under S. 299 to remove a compound wall unattached to any

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