1. The Revision Petitioner and another were convicted under S.447,379 and 506 (2), I. P. C. by the Kozhikode District Magistrate. In appeal he was acquitted of all the offences he was charged with, but was convicted under an entirely different section S. 424. I. P. C. and sentenced to undergo rigorous imprisonment for a period of two months. The petitioner challenges that conviction and sentence by means of this revision petition.

2. The prosecution case is that on 7 51961 at 7 A. M. both the accused trespassed into the Neelangadi and other nilams belonging to and in the possession of one Ammalukutty Amma examined as pw.1 in the case and committed theft of coconuts worth Rs. 251-. When pw.1 objected, she was intimidated and threatened with death by show of a pen-knife by the accused.

3. This criminal case is the off-spring of some civil disputes which arose soon after the death of one Narayanan Moosad. By Ext. P-1 will pw.1 who is the sister-in-law of Narayanan Moosad and her children claim to have inherited Moossads property. By a subsequent unregistered will Ext. D-2 Moossads brother [appellant], brothers son and Moossads second wife set up a rival claim. The matter soon reached the civil court. The petitioners party filed O. S.535 of 1960 in the Kozhikode Munsiffs Court to declare their title and possession and for a permanent injunction to restrain pw.1 and her children from entering the properties. The plaintiffs applied for a temporary injunction which was refused on 21-9-1960 on the ground that they have not proved prima facie title or possession. They have preferred an appeal which is pending in the District Court. The next move of the plaintiffs was an application to get a receiver appointed which was allowed on 2711961 on the ground that both parties have not proved the possession set up by them and there is a scramble for possession between them. pw.1 preferred an appeal and the District Judge passed an interim order staying the implementation of the order appointing the receiver. It is in this background that this criminal case arose.

4. In view of the civil courts finding that the property is not in the exclusive possession of either party, the learned Sessions Judge acquitted the petitioner of all the offences he was charged with. The State acquiesced in this view and made no grievance about it. Hence the acquittal stands.

5. The order of conviction under S.424, I. P. C. cannot be sustained for more reasons than one. The necessary ingredients of S.424 do not seem to exist in this case. The learned Sessions Judge has accepted the finding of the civil court that neither party can be said to be in actual possession of the property and so he acquitted the accused of the charge of criminal trespass and theft. The receiver has also not taken possession of the property so that the possession gets transferred to the court. Again no question of fraudulent removal or concealment arises in this case where the accused has openly taken the nuts in the exercise of his bona fide claim to inherit the properties. As observed by Mulla, J. in Nand Kishore v. Emperor AIR. 1939 Allahabad 710:

"The removal referred to in S.424 is ejusdem generis with concealment which precedes it. S.424 is designed to meet a special class of cases and has no application to a case where property is openly seized by a person in the exercise of an alleged right."

Cases of dishonest or fraudulent concealment or removal of property with a view to defeat creditors such as removal or concealment of property attached by the court or about to be attached seem to be special class of cases for which S.424, I. P. C. is designed. The latest case dealt with by the Supreme Court and referred to at the bar Teeka v. State of U. P. AIR. 1961 Supreme Court 803 also relates to the removal of property that was under court attachment.

6. Again this does not appear to me to be a proper case for the exercise of the power conferred on the appellate court under S.423, Cr.P.C. to alter the finding. In all cases where the appellate court applies a different penal provision, there is one factor to be guarded against. An accused has a right to know the charge against him and he should be given an opportunity to defend himself. Therefore it is only in those cases, where there is no reasonable possibility of prejudice being caused to an offender, that the appellate court can alter the conviction under S.237 Criminal Procedure Code. Here the charge was for theft of property in the possession of the complainant and the accused was defending that charge. Different factors are to be given prominence in a charge of dishonest concealment or removal of property from the possession of the complainant by the accused and it cannot be said that this change of front in the appellate court without notice to him has not prejudiced him. If doing substantial justice is to be our aim, then clutching at untenable or doubtful positions to convict the accused defeats the lofty aim.

7. The revision petition is therefore allowed and the conviction and sentence are set aside. His bail bond is cancelled and he is set at liberty.

Allowed.