The Rajasthan High Court in Anil Kumar and Another Vs. State of Rajasthan, (1992) CriLJ 3637 , while dealing with an identical issue, in Paragraph No. 13 held as follows:–
“13. The term, “minor offence” has to be interpreted in its ordinary sense and not technical sense. The test is not the gravity of punishment. When a person is charged with an offence, consisting of several particulars, and if all the particulars are proved, then it will constitute the main offence, while if only some of those particulars are proved and their combination constitutes a minor offence, the accused can be convicted of the minor offence, though he was not charged with it. Thus, a minor offence within the meaning of S.222, Cr.Pc., would not be something independent of the main offence or an offence merely involving lesser punishment. The minor offence should be composed of some of the ingredients constituting the main offence and be a part of it. In other words, the minor offence should essentially be a cognate offence of the major offence and not entirely a distinct and different offence, constituted by altogether different ingredients”.
Section 222 of the Code of Criminal Procedure, which reads as follows:–
“222. When offence proved included in offence charged-
(1)Â 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, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
(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.
(3). When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4). Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.”
Statutory Definition is not available
Interestingly, the term “minor offence” has not been defined in the code. It is too well settled that one of the tests to decide whether a particular offence is a minor offence to the other offence for the purpose of Section 222 of the Code of Criminal Procedure is the quantum of punishment prescribed under the said provisions. Apart from the above, both the offences should be cognate offences. The term minor offence has to be interpreted in its ordinary sense and not in technical sense. The test based on the particulars prescribed is one test, but not the only test. Though the punishment for both the offences is the same, if one offence is made out of certain particulars, whereas the other is made out of few additional particulars, then, the former shall be construed as a minor offence, provided the punishment prescribed for the same is not more than the punishment for the other offence. It is common knowledge that the major offence is the one, which is made out of more particulars, which includes a minor offence, which is made out of only some of the said particulars. The offence, which is made out of more particulars, shall be construed as a major offence, whereas the offence, which is made out of some of those particulars, is a minor offence, de hors the fact that the punishment provided is one and the same. In this regard, I may refer to the Judgment of the Hon’ble Supreme Court in Shamnsaheb M. Multtani v. State of Karnataka, reported in AIR 2001 921, wherein in Paragraph Nos. 14 to 16, it is held as follows:–
“14. Sections 221 and 222 of the Code are the two provisions dealing with the power of a criminal court to convict the accused of an offence which is not included in the charge. The primary condition for application of Section 221 of the Code is that the court should have felt doubt, at the time of framing the charge, as to which of the several acts (which may be proved) will constitute the offence on account of the nature of the acts or series of acts alleged against the accused. In such a case the section permits to convict the accused of the offence which he is shown to have committed though he was not charged with it. But in the nature of the acts alleged by the prosecution in this case there was absolutely no scope for any doubt regarding the offence under Section 302 IPC, at least at the time of framing the charge.
- Section 222(1) of the Code deals with a case “when a person is charged with an offence consisting of several particulars”. The section permits the court to convict the accused “of the minor offence, though he was not charged with it”. Sub-section (2) deals with a similar, but slightly different situation.
“222. (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.”
What is meant by “a minor offence” for the purpose of Section 222 of the Code?
Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence.
From the above Judgment, it is crystal clear that to find as to whether a particular offence is a minor offence to the other offence in question, what is required or essential is that both the offences should be cognate offences, where the main ingredients are common and the one punishable among them with a lesser sentence can be regarded as a minor offence.