JUDGMENT

1. The accused in this case was convicted by the trial Magistrate of an offence u/s 379, Indian Penal Code, and sentenced to pay a fine of Rs. 60. On appeal the District Magistrate set aside the conviction u/s 379, but convicted the accused u/s 143, Indian Penal Code, maintaining the sentence. This Rule has been obtained on the ground that the procedure followed by the District Magistrate is not correct in law and the petitioner having been convicted u/s 379, Indian Penal Code, on the findings arrived at by the appellate Court, he should have been acquitted. The view that where a person is charged under one offence and convicted of a different offence by the appellate Court with which he was not charged, it is beyond the power of an appellate Court u/s 423(b)(2), has long prevailed in this Court. A case which is exactly in point is the case of Jatu Singh v. Mahabir Singh [1900] 27 Cal. 660. There too the accused were convicted of theft and that was the only charge which they were called upon to answer. In appeal the District Magistrate held that no theft had been committed but he convicted them for being members of an unlawful assembly. It was held that the accused were cal