JUDGMENT - B.M. SAPRE, J.:---This is an appeal by the original accused, who have been convicted by the Presidency Magistrate, 27th Court, Mulund, Bombay, of an offence punishable under section 403 of the Indian Penal Code and each of whom has been sentenced to undergo rigorous imprisonment for one month and to pay a fine of Rs. 50/-, in default, to undergo-rigorous imprisonment for seven days. They were charged with an offence under section 379 of the Indian Penal Code, but they were acquitted of that offence and instead were convicted under section 403 of the Indian Penal Code. The case of prosecution was that on 16th July, 1972, Shaikh Mohamed Balam (P.W. 5). Sub-Inspector, Bhandup Police Station, was on patrol duty along with some policemen. At about 2.45 a.m. they came near Powai Lake. They noticed the two accused standing in the bushes at a distance of 15 paces. Three bundles containing fish were lying in front of them. The accused had apparently notted these fish from the Powai Lake which belongs to the Bombay Municipal Corporation. The accused were accordingly prosecuted for committing theft of the fish. The defence of the accused was one of total denial. According to them, the police took them from the bus stop and falsely implicated them. On the evidence adduced before him, the trial Magistrate found that both the accused were in possession of the fish in question. He further found that the fish was the property of the Bombay Municipal Corporation, which is the owner of Powai Lake. The learned trial Magistrate, however, was of the view that the accused could not be convicted of the offence of theft. For this view, he gave the following reasons:- "Accused cannot however be convicted of theft. The learned Advocate for the accused Shri Dabholkar rightly pointed out that fish of Powai Lake is of a ferae nature and unless it is confined in specified limits it cannot be a subject-matter of theft. The extent of the Powai Lake is about 10 miles, hence the movement of the fish in it cannot be restricted. The learned Advocate for the accused relied upon the judgment of the Madras High Court, reported in (In re Perumal and another, petitioners) where Justice Mr. Soma Sunderam observed : the same principles will apply to animals found in reserve forests. The learned Advocate for the accused relied upon the judgment of the Madras High Court, reported in (In re Perumal and another, petitioners) where Justice Mr. Soma Sunderam observed : the same principles will apply to animals found in reserve forests. Till they are tamed and domesticated and brought to the custody of a person, whether it be Government or any other individual, such animals cannot be said to be in the possession of the Government and if they are not in the possession of the Government, the offence of theft cannot be committed. His Lordship also cited other judgments with approval which laid down that fish in open and unenclosed water are of ferae nature and that they are not capable of possession and hence cannot form the subject-matter of theft. In view of this decision, it is not possible to hold the accused guilty of the offence of theft." The trial Magistrate, however, was of the view that the accused can be said to have committed an offence punishable under section 403 of the Indian Penal Code. For this view, he gave the following reasons :- "Accused can, however, be convicted of the offence of criminal misappropriation. I have already stated that it has been proved that the attached fish belonged to the Bombay Municipal Corporation, it being from Powai Lake. The accused had dishonestly collected them from the Lake. They did not seek the permission of the authorities to collect the same. The learned Advocate for the accused argued that even if the taking of the fish from the lake is held to be proved, the prosecution has not established that the accused converted them to their own use. It is not necessary for the prosecution to prove conversion. If the prosecution establishes that the accused dishonestly collected the fish, then they must be held to be guilty of the offence of criminal misappropriation under section 403 of the Indian Penal Code. It is not necessary for the prosecution to prove conversion. If the prosecution establishes that the accused dishonestly collected the fish, then they must be held to be guilty of the offence of criminal misappropriation under section 403 of the Indian Penal Code. The accused caused wrongful loss to the Municipal Corporation by collecting fish without its permission and as such they are guilty of the offence of criminal misappropriation." Although there was no charge under section 403 of the Indian Penal Code, the trial Magistrate held that in view of the provisions in sections 236 and 237 of the Code of Criminal Procedure, 1898, the accused could be convicted of the offence under section 403 of the Indian Penal Code. Since the defence of the accused was of total denial, there was also no likelihood of any prejudice being accused by convicting them under section 403 of the Indian Penal Code without framing the charge in that behalf. Feeling aggrieved by the order of conviction and sentence, the two accused have come up to this Court in appeal. Mr. Nair on behalf of the appellants-accused has made the following two submissions :- (1) When the charge was framed only under section 379 of the Indian Penal Code, it was not proper for the trial Magistrate to convict the accused under section 403 of the Indian Penal Code. The charge was not even altered before the trial Magistrate decided to convict the accused under section 403 of the Indian Penal Code and the altered charge was not read over and explained to them. This procedure had been highly prejudicial to the accused and had resulted in miscarriage of justice. (2) Even on facts and evidence, the accused could not be convicted of the offence under section 403 of the Indian Penal Code. In regard to the first submission, it is necessary to notice the provisions in sections 236 and 237 of the Code of Criminal Procedure. (2) Even on facts and evidence, the accused could not be convicted of the offence under section 403 of the Indian Penal Code. In regard to the first submission, it is necessary to notice the provisions in sections 236 and 237 of the Code of Criminal Procedure. Section 236 is to the following effect :- "If, a single act or a series of acts is of such nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences." The section thus permits framing of charge only in respect of one offence where the act is of such a nature that it is doubtful which of the several offences the facts will constitute. Section 237 is in these words :- "If, in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it." The section thus says that where in a case falling under section 236, (that is, where a single act is of such a nature that it is doubtful which of several offences the facts will constitute and where the charge has been framed in respect of only one of such offences) the accused is charged with one offence but from the evidence adduced it appears that he did commit a different offence for which he might have been charged under section 236, he can be convicted of the offence which he is shown to have committed, although he was not charged with it. If, therefore, the accused were charged with theft but if it appears from the evidence that they had committed the offence of misappropriation, they could be convicted of the latter offence, through they were not charged with such offence. If, therefore, the accused were charged with theft but if it appears from the evidence that they had committed the offence of misappropriation, they could be convicted of the latter offence, through they were not charged with such offence. It is true that at the stage when the trial Magistrate came to the conclusion that the accused could not be convicted under section 379 of the Indian Penal Code but could not be convicted under section 403 of the Indian Penal Code, the charge was not altered and, consequently, was not read over and explained to the accused as provided in section 227(2) of the Code of Criminal Procedure, but that will not invalidate the conviction and sentence under appeal. Section 535(1) of the Code says that no finding of sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed, unless, in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby. As rightly pointed out by the trial Magistrate, the defence of the accused was of total denial. They were denying their very possession of the fish and had taken up a defence that they were at the bus stop and from there the police had taken them and falsely implicated them. In the face of this defence, it was immaterial whether they were made answerable to a charge under section 379 or section 403 of the Indian Penal Code. In other words, merely because the charge framed was under section 379 of the Indian Penal Code, in convicting the accused under section 403 of the Indian Penal Code no prejudice could be said to have been caused to the accused, nor the procedure followed by the trial Magistrate could be said to have resulted in miscarriage of justice. Turning to the second submission of Mr. Nair, as already noted, the trial Magistrate has held that the accused could not be said to have committed the offence of theft, because the fish said to be netted by the accused from Powai Lake could not be said to be in possession of the Bombay Municipal Corporation, the owner of Powai Lake. The reason was that fish is of a ferae nature and unless it is confined in specified limits, it cannot be a subject-matter of theft. The reason was that fish is of a ferae nature and unless it is confined in specified limits, it cannot be a subject-matter of theft. That view of the trial Magistrate seems to be correct. In addition to the Madras High Court decision relied upon by him, Mr. Nair has brought to my notice two decisions of the Calcutta High Court, One of these is (Bhagiram Dome v. Abar Dome)2. In that case, the main charge was one of theft said to have been committed by the accused in respect of fish in a public river. It was observed that it was a flowing river and that fish enter it, and leave it, at their pleasure. The Government had leased to the complainant certain fishery rights. It was pointed out that the lessee of the fishery had no control whatsoever over the fish in the river. The fish were not stored or bred there. They were not confined within an enclosed space and were, therefore, free to go wherever they pleased. The fish are of farae nature and as such nobody can be said to be in possession of them and, therefore, no theft can be committed in respect of such fish. The second decision is (Maya Ram Surma v. Nichala Katani)3. In that case, the accused were charged with having taken fish from a tank belonging to the complainant. It was found that the tank in question was not enclosed on all sides, and was dependent on the over-flow of a neighbouring channel which was connected with other flowing streams for its supply of fish, that the fish were not reared and preserved in the tank, and that the occurrence complained of took place at a time when the floods were high, and the tank was connected with the streams, so that the fish could leave it at pleasure. It was, therefore, held that the fish were farae nature and not in the possession of the complainant, and consequently no offence had been committed. In the instant case also, it is in the evidence of Loknath Chunilal Mehta (P.W. 3), who was the night watchman on duty at Powai Lake at the time of the occurrence, that Powai Lake is joined by Vihar Lake at a point of Mulund side. There is no evidence that Vihar Lake is also owned by the Bombay Municipal Corporation. There is no evidence that Vihar Lake is also owned by the Bombay Municipal Corporation. The possibility of fish from Vihar Lake coming into Powai Lake cannot be excluded in view of the fact that at some point Vihar Lake joins Powai Lake. The fish in question were thus not capable of possession by the owner of Powai Lake, inasmuch as the fish could go out of Powai Lake into Vihar Lake and similarly, the fish from Vihar Lake could come into Powai Lake. The view taken by the trial Magistrate, therefore, that the offence of theft could not be proved against accused is correct. It may be noted that the State has not come up in appeal against the acquittal of the accused on the charge under section 379 of the Indian Penal Code. It is surprising how the trial Magistrate, having found that the accused could not be held to have committed the offence under section 379 of the Indian Penal Code, had come to the conclusion that they could be held guilty under section 403 of the Indian Penal Code. The question more or less in similar circumstances, whether, where the accused could not be held guilty of the offence under section 379 of the Indian Penal Code, they could be held guilty of the offence under section 403 of the Indian Penal Code, arose for consideration in the case of Bhagiram Dome v. Abar Dome (supra). It was pointed out in that case that criminal misappropriation takes place when the possession has been innocently come by, but where, by a subsequent charge of intention, or from the knowledge of some new fact with which the party was not previously acquainted, the retaining becomes wrongful and fraudulent. As in that case, in the instant case also, there cannot be any pretence for saying that subsequent to the act of taking the fish by the accused from Powai Lake anything happened which constituted the retaining of the fish wrongful and fraudulent. The intention was one and the same throughout; and no new facts occurred which could possibly change the character of the seizure and retention of the fish. (Vide discussion at page 400). In this view of the matter, I am unable to appreciate the reasoning of the trial Magistrate in paragraph 8 of his judgment, which I have already reproduced. The intention was one and the same throughout; and no new facts occurred which could possibly change the character of the seizure and retention of the fish. (Vide discussion at page 400). In this view of the matter, I am unable to appreciate the reasoning of the trial Magistrate in paragraph 8 of his judgment, which I have already reproduced. In my view, on the facts of the case, no offence under section 403 of the Indian Penal Code could also be brought home to the accused. In the result, the appeal is allowed. The conviction of the appellants and the sentence imposed on them are hereby set aside and they are acquitted. Their bail bonds are ordered to be cancelled. The fine, if paid, shall be refunded to them. -----