Legal Provisions of Section 222 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
When offence proved included in offence charged:
This section contemplates a conviction for a minor offence in which the charge is of an offence which consists of several particulars, a combination of some only of which constitutes a complete minor offence. Thus the minor offence is a component part of the major offence of which the accused is charged.
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The section, therefore, lays down a limit under which a person who has been charged of a particular offence can be convicted of any minor offence which is a component part of that offence. As such, the section provides an exception to the general rule that a person cannot be convicted of an offence with which he is not charged.
The criteria to decide that the offence is minor in relation to the offence charged is the punishment provided for the committing of minor offence which must in all cases be less than that provided for committing the major offence with the accused has been charged. To illustrate, when the accused is charged of an offence of robbery under Section 392, IPC, the Court can convict him for the offence of theft under Section 379. IPC which is a minor offence.
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But a charge of rape under Section 376, I.P.C. cannot be altered into a charge and conviction for the offence of kidnapping under Section 366, I.P.C. because the two offences involve different elements and different questions of fact and the offence of kidnapping cannot be said to be minor to, or included in, the offence of rape.
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Sub-section (3) provides that when a person is charged with an offence, he may be convicted of an attempt to commit such offence although he is not separately charged with the attempt. Thus where the accused was charged under Section 376, IPC for the offence of rape, he could be convicted for attempt to commit rape if rape was not proved, although he was not separately charged for attempt to rape.
Likewise, a person charged with an offence of culpable homicide under Section 304 IPC or grievous hurt under Section 325 IPC may be convicted of an offence of simple hurt under Section 323 IPC.
In Saukat Hussain Guru v. State (NCT), Delhi, it was held that an accused could be convicted for a minor offence even in absence of charge having been framed against him. In the instant case, the accused was charged under Section 121 of IPC for the offence of waging, attempting or abetting war against State.
The offence of concealment of such fact, in the circumstances was a minor offence. Therefore, the accused could be convicted under Section 123 of IPC even in absence of charge. His plea was that he did not get the opportunity to raise the defence of reasonable excuse was held to be not tenable on the ground that it could also be raised in his trial under Section 121, IPC.
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He was convicted under Section 123 and his review petition was also dismissed by the High Court. He filed a curative petition before the Supreme Court which the Court quashed being not tenable.