Jagannadha Raju, J.
1. This revision is filed by the three accusedwho were convicted originally by the trial Court viz., the II Additional AssistantSessions Judge, Vijayawada in SC No. 85 of 1986. They were convicted foroffence Under Section 306 IPC-abetment of suicide and Under Section 498AIPC-cruelty caused to a women by husband or relatives of husband. Theywere sentenced to suffer RI for a period of three years under each count andthey were also ordered to pay a fine of Rs. 50/- each under each count and indefault in payment of fine to suffer simple imprisonment for seven days. InCrl. Appeal No. 93/88 which was disposed of by the III Additional SessionsJudge, Vijayawada on 10-8-1990, the convictions for offences Under Sections306 and 498-A IPC were set aside and instead the accused were convictedfor an offence Under Section 304B IPC, an offence popularly known as 'dowrydeath'.
2. In this revision, Sri Ella Reddy contends that the judgment of theappellate Court is vitiated because the accused are convicted for an offence forwhich no charge was framed. They are convicted of an offence Under Section304B IPC which came into statute book No. 19.11.1986 while the allegedoccurrence of the offence took place on 9.5.1986. This is a case of convictionunder an expost facto law. He further contends that an offence Under Section304B IPC is a much graver offence when compared to the offences underSections 306 and 498A IPC. The Appellate Court has no power to convictthese accused for the graver offence especially when no charge was framed forthe graver offence.
3. The learned Public Prosecutor relies Under Section 386(b) Cr. P.C.and tries to justify that this is a case of the Sessions Judge altering the findingmaintaining the sentence. He frankly stated that the proper course for theappellate Judge would have been to remand the case for a fresh trial actingunder Sub-clause (1) of Section 386(b).
4. The point for consideration is what is the proper course of actionthat has to be taken by this Court while exercising its revisional powers in thisCase
5. A perusal of the appellate Court Judgment clearly indicates thatthe Sessions Judge did not bear in mind the provisions of Chapter XVII ofthe Code of Criminal Procedure, nor did he look into the provisions of Section386 Cr. P.C. which deal with powers of an appellate Court. The judge does notappear to have noticed that an offence Under Section 304B IPC popularly knownas 'dowry death' has come into the statute book by reason of Section 10 ofAct 43/86 which came into force on 19.11.1986. The Sessions Judge appearsto have forgotten the fact that he was dealing with an incident which tookplace nearly 6 1/2 months prior to this offence being created by way of anamendment to the IPC. No Court has power to convict an offender for anoffence which was not in existence in the statute book on the date of offence.The judgment of the Sessions Judge violates the principles of convictionfor an offence created by ex post facto law. On this sole ground itself, theJudgment of the Appellate Court is liable to be set aside.
6. A reading of the Judgment also indicates that the Judge was notaware of the quantum of punishments prescribed for the three offences viz.,306 IPC-abetment of suicide, 498-A cruelty caused to a woman by husbandor relatives of husband and the punishment for the offence Under Section 304BIPC-dowry death. In this case, charges were framed for the lesser offencesof 498-A and 306, Section 498A is punishable with imprisonment whichmay extend to three years and shall also be liable to fine Section 306 IPC ispunishable with imprisonment of either description which may extend to tenyears and shall also be liable to fine. There is no statutory minimum sentencecontemplated for the offences under. Sections 306 and 498A, while for anoffence Under Section 304-B the punishment is a statutory minimum entenceof seven years and the punishment may also extend upto imprisonment for life.Obviously the Sessions Judge was not conscious of the fact that he wasconvicting the accused for the graver offence while they had faced the trial for thelesser offence.
7. The Judge was not conscious of the fact that what he was doingoffends the provisions of Chapter XV11 of the Cr. P.C. even if he were to bepresumed to act Under Section 221. Invoking Section 221(2) is permissibleonly cases in which charges could have been framed for different offences of asimilar character Under Section 221(2). As indicated earlier, the nature of thethree offences is totally different and distinct. In such circumstances, theJudge is not entitled to call-in-aid Section 221(2). Of course, in thisparticular case the Sessions Judge has no where referred to any provisions ofChapter XVII of the Cr. P.C. in his Judgment. If he had taken pains to lookinto the provisions of Chapter XVII, he would have known that by reason ofSection 218 there should be separate charges for distinct offences.
8. The powers of the appellate Court hearing an appeal from aconviction are prescribed under Clause (b) of Section 386. If the Judge feltthat the offences for which charges were framed and the accused were convictedby trial Court are not made out and that a different offence is established, thenhe should have acted under Sub-clause (i) of Section 386(b) and remandedthe case for re-trial. He has not done so. On the other hand, presumablyacting under Sub-clause (ii) he convicted the accused for a graver offence forwhich no charge was framed and maintained the sentence imposed by the trialCourt. This is against the provisions of law.
9. The further question that arises for consideration is what is theproper course of action this Court can adopt in this revision? In a Criminal .Revision Case, the High Court is certainly entitled to act Under Section 397 orUnder Section 401 of the Cr. P.C. Under Section 397 in a suo motu revision, theCourt is entitled to satisfy itself as to the correctness, legality or propriety ofany finding, sentence or order, recorded or passed and as to the regularity ofany proceedings of such inferior Court. Under Section 401, Cr. P.C. whichdeals with High Court powers conferred on a Court of Appeal by Sections 386,389, 390, 391 or on a Court of Session by Section 307. The only inhibition isthat no order should be passed to the prejudice of the accused or other personunless he has an opportunity of being heard. The High Court is also precludedfrom converting a finding of acquittal into noe of conviction. A perusal of theJudgment of the appellate Court clearly shows that the Judge in para 26 of theJudgment recorded a finding in the following terms :
'The conviction and sentence passed Under Section 306 and498-A IPC are set aside'.
In view of this, there is absolutely nopower for this Court to restore the convictions recorded by the trialCourt even if this Court comes to the conclusion that the evidencejustifies the conclusions and the convictions of the accused recordedby it. So far as the appellate Court's finding is concerned, it isquite certain that the conviction is illegal and it is against the provisions of law. In such circumstances, the only proper course thatis open to this Court is to set aside the conviction and remand thecase for re-trial.
10. In the result, the Crl. P.C is allowed. The conviction of theaccused for an offence Under Section 304B IPC is set aside. SC No. 85/86 isremanded to the Court of the II Addl. Assistant Sessions Judge, Vijayawadafor a fresh trial. The Assistant Sessions Judge shall first peruse the record,frame charges and then proceed with the trial.
11. As the case is nearly five years old, the re-trial shall be conductedexpeditiously and at any rate it should be concluded within a period of fourmonths from today.