The judgment established the principle that an accused may be convicted of the abetment of an offence, even if not charged separately, based on the facts alleged by the prosecution and the application of Sections 236 and 237 of the Criminal Procedure Code.

Sundara Aiyar, J.

1. The Petitioner in this case was the 3rd accused in Calender Case No. 189 of 1911 on the file of the 2nd class Magistrate of Kottapeta. The first accused was a dancing girl and the 3rd accused is said to have kept her. The facts on which the prosecution was based were that the complainant lent a jewel to the 1st accused; this jewel was subsequently pledged by the 2nd and 3rd accused to the 6th prosecution witness The money obtained by the pledge was apparently appropriated by the 2nd accused. The jewel was given to the 2nd accused for being pledged. There can be no doubt that the 2nd and 3rd accused had no right to pledge the jewel. Both Courts have found as a fact that the 3rd accused was aware that the jewel did not belong to the 2nd accused and that he introduced the 2nd accused to the 6th prosecution witness, as a relation of his in order to induce the witness to give a loan to the 2nd accused on the pledge of the jewel. Both of them acted at the instance of the 1st accused who gave the jewel. On the facts the Lower Courts have convicted the 3rd accused of criminal breach of trust.

2. It is contended that the conviction cannot be upheld as there was no entrustment of the jewel to the 3rd accused. Entrustment of the jewel to the third accused is, according to Section 406 Indian Penal Code a necessary element of the offence of Criminal Breach of Trust. It is urged by the learned Public Prosecutor that by confirming with the first and 2nd accused to pledge the jewel with prosecution witness 6, the 3rd accused would be guilty of abetment of criminal breach of trust; and that as he was present at the act of pledging he would be also guilty of the principal offence itself under the provisions of Section 114 of the Penal Code. That section enacts whenever any person who being absent would be liable to be punished as an abettor is present when the act or offence for which he would be punishable in consequence of the abetment is committed he shall be deemed to have committed such act or offence. I doubt whether under this section a principal offence would be committed where one of the elements of the offence is a particular relationship between the abettor and the 3rd person who is absent in the case. The act of pledging may no doubt be taken to have been committed by the third accused also in consequence of his presence at the time when the 2nd accused did the act. The language of the section no doubt lends itself to the argument that where ever a person is guilty of an abetment his presence at the commission of the offence would make him guilty of the principal offence. But the section I think would really be applicable only where the act at the doing of which the abettor is present would itself amount to an ofience. Now the mere pledging would not be an offence by itself. Another equally essential element is the entrustment. I am inclined to think that the mere presence of the 3rd accused at the act of pledging would not make him guilty of the principal offence of criminal breach of trust. But I see no reason why he should not be held to be guilty of abetment of criminal breach of trust. The facts charged against him were that he was a party to the pledging of a jewel which was entrusted to the 1st accused. On those facts a charge of abetment of criminal breach of trust could have been framed against him. I think the provisions of sections 236 and 237 of the Criminal Procedure Code are applicable to such a case. It was a question whether on the facts alleged the accused would be guilty of Criminal breach of trust or of abetment of that offence. Both charges could have been framed against him on the facts alleged by the prosecution and in such a case it is open to the court under Section 237 to convict the accKsed of the abetment of Criminal Breach of Trust, though no charge was framed against him for that offence. Mr. Venkatramiah relies on two capes in support of his argument that a person can in no ca