JUDGMENT

King, J. - This is an application in revision against an appellate order of the learned Sessions Judge of Meerut convicting the applicant u/s 411 of the Indian Penal Code.

2. The accused was charged in the trial court with kidnapping a boy from the lawful guardianship of his father, and with having stolen a hundred rupee note, under Sections 363 and 379 of the Indian Penal Code. The trial Magistrate convicted the accused under both Sections.

3. In appeal the learned Sessions Judge set aside the conviction u/s 363 on the ground that it was at least doubtful whether the boy, whom the accused had taken away, was under the age of fourteen years on the date of the alleged offence.

4. With reference to the conviction u/s 379 the Judge found that the evidence did not prove that the accused himself committed the theft of the note. The facts alleged by the prosecution were that the boy himself stole the note from his father, at the instigation of the accused. On these allegations I agree with the learned Sessions Judge that the accused should have been charged with abetment of the theft u/s 379/109 and with dishonestly receiving stolen property u/s 411 of the Indian Penal Code. The Judge found that there was no evidence that the accused instigated the boy to commit the theft, excepting the evidence of the boy himself, and did not think it safe to rely on the boy's statement in the absence of any corroboration. He was, however, satisfied that the accused received the note from the boy knowing it to be stolen property. He, accordingly, altered the conviction u/s 379 to one u/s 411 of the Indian Penal Code.

5. It has been argued on the merits that there is no evidence to prove the guilt of the accused u/s 411 of the Indian Penal Code apart from the boy's own statement which the learned Judge considered insufficient to prove the allegation that the accused instigated the boy to commit the theft, and, therefore, the boy's evidence should be held insufficient to prove that he delivered the stolen note to the accused. The boy's statement that he delivered the hundred rupee note to the accused does, however, -receive some corroboration from the facts that the accused, when he was arrested with the boy, had a note of Rs. 100 in his possession, and that he unsuccessfully tried to conceal the fact that he had the note in his possession. In these circumstances I think it was perfectly open to the court to find that the boy's statement, about handing over the stolen note to the accused, was true. The accused must have known that this note was stolen property. I Think there are no grounds whatever for setting aside the conviction u/s 411 upon the merits.

6. It has been further argued that the learned Sessions Judge had no jurisdiction to alter the conviction u/s 379 to one u/s 411 of the Indian Penal Code. It is conceded that u/s 235 of the Code of Criminal Procedure the Magistrate was empowered to charge the accused with offences under Sections 363 and 379 and to try him at one trial on both charges.as the alleged offences were so connected together as to form the same transaction. It is argued, however, that when the provisions of Section 235 are utilized, by way of an exception to the general rule laid down in Section 233, then no other Section (such as Section 236) which imports an exception to that general rule can also be brought into use. In' other words, the provisions of Sections 235 and 236 are said to be mutually exclusive. It is urged, therefore, that as the provisions of Section 235 have been relied upon for the purpose of trying the two offences under Sections 363 and 379, no recourse can be had to the provisions of Section 236, and, therefore, the provisions of Section 237 also cannot be utilized for the purpose of altering the conviction u/s 379 of the Indian Penal Code to one u/s 411 of the Indian Penal Code. I have been referred to the ruling in Emperor v. Janeshar Das ILR (1929) All. 544., in. which it was held by a single Judg