Order The petitioner was the first accused in Criminal Case No. 593 of 1978, on the file of the Additional Munsiff and Judicial Magistrate First Class, Bhadrawathi. He along with 4 others, was prosecuted for the offences punishable under sections 379 and 411 of the Indian Penal Code read with sections 84 and 86 of the Karnataka Forest Act. The learned Magistrate after assessing the evidence of the prosecution, came to the conclusion that the prosecution has not made out any case against accused-5 and acquitted him of all the charges. Further he acquitted accused-1 to accused-4of the offence punishable under section 84 of the Karnataka Forest Act, as also under section 411 of the Indian Penal Code. But, however, he held that the prosecution has proved the offences punishable under section 379 , Indian Penal Code and section 86 of the Karnataka Forest Act, as against accused-1 to accused-4 and sentenced each of them to undergo one year and three months rigorous imprisonment and to pay a fine of Rs. 500, in default to undergo rigorous imprisonment for three months for an offence punishable under section 379 , Indian Penal Code, and further sentenced accused-1 to accused-4 to undergo rigorous imprisonment for six months for an offence punishable under section 86 of the Karnataka Forest Act. Aggrieved by the said convictions and sentences, accused-1 to accused-4 preferred an appeal before the sessions Judge at Shimoga in Criminal Appeal No.10 of 1979 who after hearing both the parties held that accused-1 is guilty of an offence punishables. under section 87 of the Karnataka Forest Act, and sentenced him to undergo rigorous imprisonment for six months. But, however by passing such an order, he set aside the convictions and sentences passed on accused-1 to accused-4 under section 379 , Indian Penal Codeandsection86 of the Karnataka Forest Act. So, ultimately, the result of the above said appeal was that the petitioner-accused No.1 was convicted for an offence punishable under section 87 of the Karnataka Forest Act, and. sentenced to undergo rigorous imprisonment for six months. The petitioner aggrieved by the said judgment of conviction and sentence as aforesaid, has challenged its legality and correctness in this revision petition. 2. sentenced to undergo rigorous imprisonment for six months. The petitioner aggrieved by the said judgment of conviction and sentence as aforesaid, has challenged its legality and correctness in this revision petition. 2. Few facts of the case for disposal of this criminal revision petition are, that on 26th September, 1977, in the early hours of morning at about 5-00 a.m., the aforesaid officials who were lying in wait near the Antharagange Forest at Siddanamatti, Bhadravathi taluk on information that large scale smuggling operations were going on in that place, were successful in apprehending a car bearing No. MEQ 4247, which according to the prosecution was carrying five people amongst whom accused-1 (the petitioner herein), was admittedly the driver. The officials were successful in bringing the car to a halt. While so doing, all the accused tried to run away but were apprehended by the foresters, p. Ws. 1 to 4 were forest officials who inspected the vehicle and found that it was stocked with sandalwood billets on the floor of the rear seat and inside the dicky of the car. It is alleged that the accused did not possess a permit either for possession or for transporting the sandal wood billets found in the car. The Range Forest Officer (P.W. 1) took possession of the said billets found in the car under Mahazar, Exhibit P-1, and also attached the said car. It is further alleged that at about 12 noon, some more billets were also recovered from the field of one Nandyappa of Siddapura village on the information said to have been furnished by accused No. 4 and the same was also seized under Mahazar Exhibit P-4. P.W. 1 on the next day filed information with the Sub- Inspector of Police, Bhadravathi, which was registered in Crime No. 122 of 1977 and thereafter the Police took up investigation and it is alleged that some of the accused made statements before the Police, on the basis of which information. P.W. 10 was able to recover six stumps which they seized under Exhibit P-5 The sandalwood billets and also the stumps were weighed and marked under a certificate. Exhibit P-6, issued by the Range Forest Officer, was to the effect that the said billets were of sandalwood. P.W. 10 was able to recover six stumps which they seized under Exhibit P-5 The sandalwood billets and also the stumps were weighed and marked under a certificate. Exhibit P-6, issued by the Range Forest Officer, was to the effect that the said billets were of sandalwood. The total quantity of the sandalwood billets so seized from the car which was in possession of the accused was said to be more than 700 Kgs. and valued at Rs. 48,000. After completing the investigation, a charge-sheet was filed against the accused for the aforesaid offences. As already indicated, the learned Magistrate convicted accused-1 to accused-4 for the offences punishable under section 379 , Indian Penal Code and section 86 of the Karnataka Forest Act, and sentenced them as aforesaid, against which order, accused-1 to accused-4 went up in appeal before the Sessions Judge who acquitted all the accused for the offences punishable under section 379 , Indian Penal Code, as also under section 86 of the Karnataka Forest Act, but however, proceeded to convict accused-1 (the petitioner herein) for an offence punishable under section 87 of the Karnataka Forest Act, and sentenced him to undergo rigorous imprisonment for a period of six months. 3. Sri. M.G. Ramiah, learned Counsel appearing for the petitioner, contended amongst other grounds, that the impugned order is bad in law inasmuch as it is not in accordance with the provisions of the Code of Criminal Procedure. Elaborating his contention, what submitted was that the accused were charge-sheeted for the offences punishable under sections 379 and 411 , Indian Penal Code, read with sections 84 and 86 of the Karnataka Forest Act, and having acquitted the petitioner-accused of all the aforesaid charges, the learned Sessions Judge has erred in convicting accused-1 for an offence punishable under section 87 of the Karnataka Forest Act. What he contended in other words, is that for which there was absolutely no charge against the petitioner-accused-1 for an offence punishable under section 87 of the Karnataka Forest Act, in which case, he could not have convicted the accused for the said charge which has resulted in grave mis-carriage of justice. What he contended in other words, is that for which there was absolutely no charge against the petitioner-accused-1 for an offence punishable under section 87 of the Karnataka Forest Act, in which case, he could not have convicted the accused for the said charge which has resulted in grave mis-carriage of justice. Further, he submitted that the reasonings of the learned Sessions Judge that section 87 of the Karnataka Forest Act contemplates a lesser offences compared with the offence under section 379 , Indian Penal Code, and therefore, if on the evidence on record it could be made out that the accused has committed an offence punishable under section 87 of the Karnataka Forest Act, though he was not charged and tried for the offence, there is absolutely no illegality in convicting him for an offence punishable under section 87 of the Act, is not sustained in law. On this legal flaw itself, he submitted that the conviction and sentence cannot be sustained. One other point he urged in support of his contention was that even assuming that accused-1 as the driver was in possession of the vehicle which contained admittedly sandalwood billets the prosecution has not proved that he was in conscious and exclusive possession of the same, in which case, it cannot be said that he has committed an offence under section 87 of the Karnataka Forest Act. Counter-acting the aforesaid arguments, Sri M.V. Devaraju, the learned State Public Prosecutor, contended that admittedly accused was the driver of the car and therefore he was in the know of things that there were sandalwood billets in the car in question and he was not in a position to produce any permit or licence either to be in possession or to transport the same and therefore the only reasonable inference that could be drawn from the aforesaid fact is, that the driver was in conscious possession of the aforesaid billets. He further contended that the order of the learned Sessions Judge observing that the accused could be convicted for a lesser offence under section 87 of the Karnataka Forest Act, on the facts and circumstances of the case,though he was not charged with and tried for the said offence, is legal inasmuch as the important ingredient which constitute an offence under section 87 , viz., the possession, is also the important ingredient of offence punishable under section 379 of the Indian Penal Code. If that is so, both of them are cognate offences and nothing prevented the learned Sessions Judge to convict and sentence the accused of a minor offence which has been proved by the prosecution. In other words, what he submitted was that the offence punishable under section 379 , Indian Penal Code, is a major offence as compared to section 87 of the Karnataka Forest Act, and as the learned Sessions Judge has held that there are sufficient materials to hold that the accused has committed an offence punishable under section 87 , nothing prevented him from convicting and sentencing the accused for the said offence as it is a minor offence as compared to the offence punishable under section 379, Indian Penal Code, and as such,there was no illegality in the impugned order and ultimately canvassed the reasonings of the learned Sessions Judge for acceptance. 4. For proper appreciation of the rival contentions canvassed by the learned Counsel, it would be necessary to advert, to some of the relevant provisions of the Code of Criminal Procedure in this behalf. 4. For proper appreciation of the rival contentions canvassed by the learned Counsel, it would be necessary to advert, to some of the relevant provisions of the Code of Criminal Procedure in this behalf. Sub- section (2) of section 221 of the Code of Criminal Procedure reads thus: “If in such a case 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 sub- section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.” Further, sub- sections (1) and (2) of section 222 of the Code of Criminal Procedure reads thus: “Sub-section (1).-When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved hut the remaning particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. Sub-section (2).-When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.” 5. The learned Sessions Judge has relied upon sub- section (2) of section 222 of the Criminal Procedure Code, to hold that section 87 of the Karnataka Forest Act is a lesser offence compared to an offence under section 379, Indian penal Code. The relevant reasoning to that effect are found in Para.13 of his judgment, which reads thus: “Sri Ravi maintained that the officers had not demanded any permit for being in possession of such quantity of sandalwood. But then, the case of the accused being one of total denial, the question really does not arise at all. What is more, when once a case is made out against the accused to be hilt, it is for the accused to rebut the statutory liability flowing from such a state of affairs and in this case he could do so only by producing a permit which authorised him to be in possession of such large quantity of sandalwood. What is more, when once a case is made out against the accused to be hilt, it is for the accused to rebut the statutory liability flowing from such a state of affairs and in this case he could do so only by producing a permit which authorised him to be in possession of such large quantity of sandalwood. It would not do for him to say that he would have produced it if the officers had asked him for it and it would be somewhat incongruent to say so because he denies the whole incident. I therefore see little substance in the submission of Ravi. I therefore hold A-1 guilty of offence under section 87 of the Act namely of being in possession of sandalwood in excess of the permitted quantity without a permit. The chance of a charge under section 87 of Karnataka Forest Act will not be a bar because it is lesser offence as confined with the offence under section 379 with which A-1 stood charged. The ingredient under which a person who is charged with an offence could be convicted for a minor offence if the facts indicate that the said accused person has committed a minor offence. It is only in such cases, the Magistrate could proceed to convict him for a minor offence although he has not charged with it. The next point that arises for consideration is, what is a minor offence. Minor offence has not been defined in the Code of Criminal Procedure, 1973. But, in a series of judicial pronouncements, it has been held that a minor offence is an offence which is a cognate offence wherein the main ingredients of an offence are in common. 6. Reliance may be placed on the rulings to this effect in Makkhan and others v. Emperor1 wherein, his Lordship while considering the equivalent provisions under the old Code, viz.,section 238, Criminal Procedure Code, has observed thus: “Under section 238 when an accused is charged with a major offence he can be convicted of a minor offence It is not defined anywhere as to what is a major offence and what is a minor offence. I suppose the gravity of the offence must depend upon the severity of the punishment that can be inflicted, but the major and the minor offences must be cognate offences which have the main ingredients in common, and a man charged with one offence which is entirely of a different type from the offence which He is proved to have committed, cannot in the absence of a proper charge be convicted of that offence, merely on the ground that the facts proved constitute a minor offence. For example, a man charged with an offence of murder cannot, I presume, be convicted for forgery, or misappropriation of funds, or such offences which do not constitute offences against person. The reason appears to be obvious, because the accused had no opportunity in such a case to make defence, which may have been open to him, if he had been charged with the offence for which he is to be convicted.” So, the sum and substance of the ratio laid down in the aforesaid case is that to constitute a minor offence,they must be cognate offence and must be having main ingredients in common. If the main ingredients are not common but on the other hand they are entirely different type from one another, in the absence of a specific and proper charge the accused cannot be convicted of the alleged minor offence, merely on the ground that the offence proved against him constitutes a minor offence. In the instant case what prompted the learned Sessions Judge to adopt this procedure was, to compare the offences under section 379 , Indian Penal Code, with that of the offence under section 87 of the Karnataka Forest Act. The learned Sessions Judge having held that the prosecution has miserably failed to prove any of the ingredient to constitute an offence under section 379 , Indian Penal Code, as also the ingredients necessary to constitute an offence under section 84 of the Karnataka Forest Act. proceeded to convict the petitioner for an offence punishable under section 87 of the Act. 7. section 87 of the Karnataka Forest Act reads thus: 87. Regulation of sale and manufacture of sandalwood and sandalwood oil. proceeded to convict the petitioner for an offence punishable under section 87 of the Act. 7. section 87 of the Karnataka Forest Act reads thus: 87. Regulation of sale and manufacture of sandalwood and sandalwood oil. (1) No person shall possess store or sell or attempt to store or sell sandalwood or disintegrate or attempt to disintegrate sandalwood in mills or by other contrivances manufacture or distil, or attempt to manufacture or distil oil from sandalwood, or redistil refine or sell oil extracted from sandalwood except under a licence obtained from such Forest Officer on payment of such fees, and subject to such restriction and conditions as may be prescribed: Provided that no such licence shall be refused in respect of distillation of oil from sandalwood and possession and storage of sandalwood for purpose of distillation, and the sale of sandalwood oil so distilled, by persons bona fide carrying on the business of distillation immediately prior to the commencement of this Act, in any area of the State: Provided further that no such licence shall be necessary for possession of sandalwood upto seven pounds for bona fide domestic use. (2) Whoever contravenes the provisions of sub- section (1) shall, on conviction, be punishable with imprisonment for a term which may extend to two years or with fine which may extend to two thousand rupees or with both. 8. To constitute an offence under section 87 what the prosecution has to prove among other ingredients are, that a person is in possession…….of sandalwood without a licence and quantity in his possession is found to have been proved more than seven pounds and the same was not for bona fide domestic use. Whereas, the main ingredients necessary to constitute an offence punishable under section 379 , Indian Penal Code, as could be made out under section 378, Indian Penal Code are that a person has removed from the possession of any person without his consent any moveable property dishonestly. Now, the point is whether the main ingredients in both these sections are the same as contended by the learned State Public Prosecutor. Now, the point is whether the main ingredients in both these sections are the same as contended by the learned State Public Prosecutor. He submitted that the main ingredients in both these two offences, are (a) the moveable property, and (b) the possession thereof and therefore he contended that these main ingredients are also found and constitute an offence punishable under section 87 of the Karnataka Forest Act which also deals with the possession of the sandalwood billets and therefore the learned Sessions Judge was perfectly justified in holding that the offence punishable under section 87 of the Act, is a minor offence. I am not impressed with these arguments for two reasons. Firstly, what sub- section (2) of section 222 of the Code of Criminal Procedure contemplates is not a lesser offence but a minor offence and to constitute a minor offence the main offence must be cognate in nature which necessarily follows that ingredient must be common. section 87 of the Karnataka Forest Act, contemplates only possession simpliciter though of moveable properties; whereas, section 379, Indian Penal Code, envisages dishonest intention and the removal of the moveable property from the possession of another person. If this is true, it is too much to say that the main ingredients in both these offences are common, and in other words, they are cognate in nature. The learned Sessions Judge has also lost sight of the fact and observed that a charge under section 87 of the Karnataka Forest Act will not be a bar because it is lesser offence as confined with an offence under section 379, Indian Penal Code. But, as already stated, what sub- section (2) of section 222 of the Criminal Procedure Code contemplates is a minor offence and not a lesser offence. There is no provision in the Criminal Procedure Code which envisages that even if facts proved amounts to a lesser offence, the accused can be convicted though not charged with it. If that is so, the reasonings of the learned Sessions Judge does not stand to reason or cannot be sustained in law. 8-a. Admittedly, the accused is not charged for having committed an offence punishable under section 87 of the Karnataka Forest Act. If that is so, he cannot be convicted for the said offence in the absence of any specific charge to that effect. 8-a. Admittedly, the accused is not charged for having committed an offence punishable under section 87 of the Karnataka Forest Act. If that is so, he cannot be convicted for the said offence in the absence of any specific charge to that effect. The aforesaid conclusion further strengthened and sustained by virtue of similar pronouncement to that effect in Samunder Singh and others v. State1 wherein the Learned Judge has observed, while dealing with section 238 of the old Code of Criminal Procedure, equivalent to section 222 of the new Code of Criminal Procedure thus: “Alteration may be made under section 238 where the offences are cognate and not different involving different elements. The true test seems to be whether the facts are such as to give the accused notice of the offence of which he is convicted though he was not charged with it, so that he is not prejudiced by the absence of charge. (……….rest omitted as unnecessary.)” 9. The purpose of framing the charge is to give notice to the accused of the offence which he is alleged to have committed so that he could meet them squarely during trial., In the instant case, there was no charge under section 87 of the Karnataka Forest Act, and even the charge under section 379 , Indian Penal Code, is held to be not proved against him, in which case, it is too much to infer that the facts disclosed has also proved by the prosecution constitute the minor offence falling under the provisions of section 87 of the Karnataka Forest Act. 10. The next contention is with regard to the exclusive conscious possession of the sandalwood billets. Sri Devaraju has also contended that there cannot be any inference other than that accused-1 was in exclusive conscious possession of the sandalwood billets as he was the driver of the vehicle in question and admittedly the sandalwood billets were found in the dicky of the car and therefore the irresistable conclusion is that the accused was in conscious and exclusive possession of the said billets. This again is not based on the facts and circumstances of the case. This again is not based on the facts and circumstances of the case. It is seen that he was arrayed as accused and was tried along with four other accused persons for the same offence and the evidence also is not clinching to the effect that he was in exclusive conscious possession of the billets in question. This is clear from the observations made by the learned Sessions Judge in this behalf. What the learned Sessions Judge has observed during the course of the order at paragraph 12 of his judgment is as follows: “……….He was the man who was in charge of the car. He is a man from Mysore, The car is also from Mysore because the owner himself is from Mysore. These facts are not denied. Some of the sandalwood billets were found in the luggage boot and they were removed from the luggage boot, is the evidence in this case which I have accepted. The mahazar Exhibit. P-1 also bears it out. It, therefore, follows that if not the other accused, at least Accused-1 should have been in the know that there was substantial quantity of sandalwood, and if such knowledge is imputed to him, then in my view section 87 of the Karnataka Forest Act would be attracted and in the absence of any rebuttal offered by the accused by production of any permit for being in possession of sandalwood in excess of the permitted quantity of seven pounds, is liable for conviction under section 87.” These observations make further clear that even the learned Sessions Judge is not definite on the proved facts and circumstances of the case that the offence under section 87 of the Karnataka Forest Act is brought home against accused No.1. But, his inference is that such a knowledge may be imputed to accused-1 in which case the offence punishable under section 87 is made out against the accused. Any inference to be drawn must be based on irresistable proved facts and circumstances and on sound principles and not on mere suspicion or surmises. As he himself has put it that if such knowledge is imputed to him, in other words, knowledge has to be imputed in the absence of specific proved facts to come to the conclusion that the accused has committed an offence punishable under section 87 of the Karnataka Forest Act. As he himself has put it that if such knowledge is imputed to him, in other words, knowledge has to be imputed in the absence of specific proved facts to come to the conclusion that the accused has committed an offence punishable under section 87 of the Karnataka Forest Act. If that is so, the reasonings of the learned Sessions Judge, themselves make it clear that on the proved facts and circumstances, it cannot be held that the accused was in exclusive and conscious possession of the sandalwood billets in question. So, the second contention also has to fail. 11. In the result, for the reasons stated above, this petition is allowed and the conviction of the accused No.1. Muneer (Petitioner) for an offence under section 87 of the Karnataka Forest Act is set aside and he is acquitted of the said offence. His bail bonds shall stand cancelled. S.V.S. ----- Accused acquitted.