JUDGMENT S.L. Kochar, J. This order shall also govern the disposal of Cr. Revision No. 354/2004, Amrish alias Nana vs. State and Cr. Revision No. 359/04, Pankaj vs. State since they arise out of the common judgment dated 8-4-2004 passed by the learned Second Addl. Sessions Judge, Ujjain in Cri. Appeal No. 69/04, thereby dismissing the appeal of the applicants and maintaining the conviction under sections 457 and 380, Indian Penal Code and sentencing them each to three years R.I. with fine of Rs. 500/- on each count and in default of payment of fine to undergo additional R.I. for one month, as passed by the learned Judicial Magistrate First Class, Barnagar on 27-1-2004 in Criminal Case No. 395/98. According to the prosecution case, on 12-9-1998, at 2.30 in the night, some unknown persons committed theft of 2,22,000 rupees cash and some gold ornaments at the residential house of Pawankumar Agrawal at Shivaji Road, Barnagar. The matter was reported at the Police Station and the police in turn registered a Crime No. 255/98. During investigation, the theft money and ornaments were seized from the possession of the applicants. They were prosecuted for the aforesaid offences and the learned Magistrate finding them guilty of the offence punishable u/s 411, Indian Penal Code sentenced them to R.I. for one year and a fine of Rs. 250/-, in default of payment of fine to suffer further R.I. for 15 days. The learned Magistrate acquitted the applicants from the charges under sections 457 and 380, Indian Penal Code. They went up in appeal and the learned Lower Appellate Court allowing the appeals (No. 237/04 and 241/04) on 21-12-2001, set aside their conviction u/s 411, Indian Penal Code on the ground that the learned Magistrate did not frame the charge against the applicants for the offence u/s 411, Indian Penal Code. He remanded back the case with a direction that if the Magistrate thinks it necessary, he may amend the charge and frame the charge u/s 411, Indian Penal Code and thereafter, after affording opportunity to both the parties to adduce additional evidence pass the judgment in accordance with law. The learned Magistrate by order dated 13-10-2003, framed the charge u/s 411, Indian Penal Code and as per prayer by the learned counsel for the defence called three witnesses namely. Sushilkumar, Vijay Kale and M.S. Shaktawat for re-examination. The learned Magistrate by order dated 13-10-2003, framed the charge u/s 411, Indian Penal Code and as per prayer by the learned counsel for the defence called three witnesses namely. Sushilkumar, Vijay Kale and M.S. Shaktawat for re-examination. The prosecution waived its right to cross-examine any witness. After re-examination of the witnesses and hearing both the parties, the learned Magistrate by judgment dated 27-1-2004 convicted all the applicants under sections 457 and 380, Indian Penal Code and sentenced them each as mentioned hereinabove, and acquitted them of the offence u/s 411, Indian Penal Code. This judgment has been challenged again in appeal and the same has been upheld by the same Additional Sessions judge, who remanded back the case. The same judgment has been challenged in this criminal revision. I have heard learned counsel for the parties and perused the entire record carefully. The contention of the learned counsel for the parties is that the learned Second Addl. Sessions Judge in Criminal Appeals No. 237/2001 and 241/2001 acquitted the applicants from the offence u/s 411, Indian Penal Code and remanded the case back with a direction that if the trial Court thinks it necessary to frame charge u/s 411, Indian Penal Code, he may frame the same and after recording additional evidence and hearing both the parties, pass the judgment in accordance with law. The learned Magistrate framed the charge u/s 411, Indian Penal Code and after recalling the aforesaid three witnesses at the prayer of the applicants and after their re-examination, passed the judgment dated 27-1-2004, thereby convicting the applicants under sections 380 and 457 of the Indian Penal Code and the same was affirmed by the learned Second Addl. Sessions Judge, Barnagar Ujjain who had remanded the case back. The learned counsel for the applicants highlighted the point that by the judgment dated 6-11-2001 passed by the learned Judicial Magistrate First Class, Barnagar, the applicants were acquitted from the charges under sections 457 and 380, Indian Penal Code and were convicted only u/s 411, Indian Penal Code. This judgment was set aside by the lower Appellate Court by judgment dated 21-12-2001 in Criminal Appeal No. 237/2001. Thereafter, the learned Magistrate framed the charge u/s 411, Indian Penal Code. This judgment was set aside by the lower Appellate Court by judgment dated 21-12-2001 in Criminal Appeal No. 237/2001. Thereafter, the learned Magistrate framed the charge u/s 411, Indian Penal Code. Again no charges were framed under sections 380 and 457, Indian Penal Code and the applicants stand acquitted from these offences in pursuance of the judgment by the learned Judicial Magistrate dated 6-11-2001, and affirmed in appeal on 21-12-2001, erred in convicting the applicants for the offences under sections 457 and 380 of the Indian Penal Code and the learned Lower Appellate Court also committed grave illegality while concurring with the judgment passed by the trial Court. Learned counsel for the applicants placed reliance on the following judgments passed in Deorao vs. Emperor, AIR 1932 Nag 173, The State vs. Rama, AIR 1956 Raj 190 , and Omprakash vs. State of M.P., 1987-II MPWN Note No. 207 and Ramcharan Bhudiram Gupta Vs. State of Maharashtra, Learned counsel for the State has supported the judgments passed by the learned Courts below. Having heard learned counsel for the parties and after perusing the entire record, this Court is of the opinion that the learned Lower Appellate Court has committed a grave illegality while setting aside the judgment passed by the learned Judicial Magistrate First Class, Barnagar on 6-11-2001 whereby while acquitting the applicants u/s 457 and 380, Indian Penal Code, convicted them for the offence u/s 411, Indian Penal Code. The learned Second Addl. Sessions Judge, Ujjain has wrongly held that without framing charge u/s 411, Indian Penal Code, if the applicants were charged under sections 380 and 457, Indian Penal Code, could not be convicted u/s 411, Indian Penal Code. For this purpose, he has in his judgment dated 21-12-2001 considered the provisions of section 71, Indian Penal Code. In view of this case, section 71, Indian Penal Code has absolutely no application in the facts involved in the present case. Section 71, Indian Penal Code says about punishment of offence made up of several offences. This section is not pointing out anything about framing of charge. In view of this case, section 71, Indian Penal Code has absolutely no application in the facts involved in the present case. Section 71, Indian Penal Code says about punishment of offence made up of several offences. This section is not pointing out anything about framing of charge. The proper provision in the facts and circumstances of the present case would be u/s 221, Criminal Procedure Code with illustrations, which reads as under:- (1) If a single act or series of acts is of such a 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. (2) 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 provision 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. Illustrations (a) A is accused of an act which may amount to theft, or receiving stolen property, or criminal breach of trust or cheating. He may be charged with theft, receiving stolen property, criminal breach of trust and cheating or he may be charged with having committed theft, or receiving stolen property, or criminal breach of trust or cheating. (b) In the case mentioned, A is only charged with theft. It appears that he committed the offence of criminal breach of trust, or that of receiving stolen goods. He may be convicted of criminal breach of trust or of receiving stolen goods (as the case may be), though he was not charged with such offence. (c) xxx xxx xxx A plain reading of section 221 of the Code of Criminal Procedure and its illustrations (a) and (b) would clearly show that a person charged with theft, can be convicted for criminal breach of trust or of receiving stolen goods (as the case may be) though he was not charged with such offence. The applicants were initially charged under sections 457 and 380, Indian Penal Code. The applicants were initially charged under sections 457 and 380, Indian Penal Code. Both these offences are major offences in comparison to that of offence u/s 411, Indian Penal Code. Therefore, with the aid of presumption u/s 114 Illustration (a), of the Evidence Act, the applicants were rightly convicted by the leaned Judicial Magistrate First Class who passed the first judgment on 6-11-2001. (See: Judgment rendered in the cases of Deorao vs. Emperor, The State vs. Rama and Omprakash vs. State of M.P. (supra) The applicants were charged under sections 457 and 380, Indian Penal Code. Both these offences are major offences than section 411, Indian Penal Code. All these three offences fall in one Chapter XVII of Indian Penal Code, regarding offences against property. In the light of the above legal and factual scenario, the conviction of the applicants by the first judgment dated 6-11-2001 was appropriate and the learned Second Addl. Sessions Judge, Ujjain erred in setting aside the same and remanding the case back to the trial Court. The learned trial Court, who has passed the second judgment dated 27-1-2004 has again committed serious illegality while convicting the applicant for the offences punishable under sections 457 and 380, Indian Penal Code because in both the offences, they were already acquitted by the First judgment dated 6-11-2001 passed by the Judicial Magistrate First Class. After acquittal of the applicants for the offence under sections 457 and 380, Indian Penal Code, the same was not challenged in appeal by the State and after remanding the case back by the Lower Appellate Court, the Appellate Court has not directed for framing of charge under Sections 457 and 380, Indian Penal Code. The direction was only for framing the charge u/s 411 of the Indian Penal Code. There was no direction by the Lower Appellate Court for de novo trial. This direction was only for a limited purpose and that direction was also not mandatory in nature, but was of a suggestive nature saying that 'if the learned Magistrate thinks it necessary'. As a result of the discussion as aforesaid, these three revisions are allowed. The conviction of the applicants for the offences under sections 380 and 457, Indian Penal Code passed by the learned trial Court and affirmed by the lower Appellate Court being illegal, improper and unjust, and consequent sentences thereunder are hereby set-aside. The applicants are on bail. As a result of the discussion as aforesaid, these three revisions are allowed. The conviction of the applicants for the offences under sections 380 and 457, Indian Penal Code passed by the learned trial Court and affirmed by the lower Appellate Court being illegal, improper and unjust, and consequent sentences thereunder are hereby set-aside. The applicants are on bail. Their bail bonds and personal bonds shall stand cancelled. Let a copy of this judgment be placed in the records of Cr. Rev. 354/04 and 359/04 each. Final Result : Allowed