In that view of the matter, there being nothing on record to show that the three items of defalcation for which the petitioner has been charged were not within the knowledge of the prosecution, as the learned Additional Sessions Judge has also noticed that the learned Assistant Public Prosecutor failed to satisfy him as to why these three items were not included in the previous trial, and further, in the absence of any adequate explanation for its non-inclusion in the previous trial in spite of resort to Section 222(2) of the Code of Criminal Procedure, I am inclined to hold that it will not be conducive to justice in the circumstances of the case, rather it will be vexatious, to have a piecemeal trial like this. In my opinion it was a fit case in the circumstances as they stand, in which these three items also could well have been included in the previous trial. That being the position. I would hold that the present trial should not continue, and the proceedings against the petitioner are accordingly quashed.Print Page
Patna High Court
Chittaranjan Saha vs The State on 15 July, 1959
Equivalent citations: AIR 1960 Pat 168, 1960 CriLJ 503
Bench: S Misra, T Nath
1. The petitioner, a postman connected with the City Post Office in the town of Bhagalpur is being tried for criminal misappropriation in respect of money orders entrusted to him. The three items which are sought to be made the subject-matter of the charge in the present trial were of the following dates -- 1-7-1953, 11-7-1953 and 12th October, 1953. When the petitioner was produced before the learned trial Judge on 9-2-1957, a petition was filed on his behalf informing the Court that he was already tried on the charge of criminal breach of trust with respect to the amount of money defalcated between 7-3-1953 and 14-10-1953, and the present trial, therefore, was barred under Section 403 of the Code of Criminal Procedure. A prayer was also made on his behalf for adjourning the case on the ground that he would move this Court for quashing the proceedings pending against him. The learned. Additional Sessions Judge, therefore, contented himself merely by the discussion of the authorities placed before him for consideration, and without expressing a final opinion, adjourned the case to enable the petitioner to move this Court for quashing the proceedings. The present petition has accordingly been filed for this purpose.
2. The facts involved in the decision of the present petition are rather simple. It is not denied on behalf of the State that the petitioner was tried for criminal breach of trust in respect of 27 items involving a sum of Rs. 2842/13/- which fell within the period in question, that is to say, from 7-3-1953 to 14-10-1953. It is also obvious that the three items for which he is being tried in the present trial also fell within, the same period. The charge against him in the previous trial ran as follows :
"That you on and in between 7-3-53 and 14-10-53 at Bhagalpur City Post Office, P.S. Kotwali, District Bhagalpur being a postman and as such, a public servant in the employment of the said Bhagalpur City Post Office under the Post and Telegraph Department of the Union Government of India and in such capacity and trusted with a gross sum of Rs. 2842/13/0 only, committed criminal breach of trust with respect to the said money and thereby committed an offence punishable under Section 409 I.P.C. and within my cognizance and I hereby direct..... that you be tried by me on the said charge."
Learned counsel for the petitioner has accordingly urged that the present proceedings should be quashed because recourse was had in the previous trial to the provisions of Section 222(2) o£the Code of Criminal Procedure. All the 27 items were lumped together and treated as one offence having been committed during the period in question, and in terms of Section 222(2) a fresh trial was barred. It is true that the order-sheet of the previous trial is not before us, and it is accordingly difficult to be positive that recourse was had in express terms to Sub-section (2) ofSection 222.
As it is, however, the charge quoted above lends support to the contention on behalf of the petitioner that the prosecution resorted to the procedure laid down in Section 222(2), as the particulars of the specific items of the offence were not incorporated in the charge, but the two extreme dates specifying the period were mentioned as also the gross sum which was alleged to have been misappropriated by the accused person. In substance, therefore, the procedure could only be justified under Section 222(2), and it is, therefore, proper to p roceed upon the footing that the previous trial was old on the basis of Section 222(2) of the Code of Criminal Procedure which provides :
"When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 234 :
Provided that the time included between the first and last of such dates shall not exceed one year."
3. Learned counsel for the petitioner has placed reliance upon the case of In re., Appadurai Ayyar, AIR 1917 Mad 524 where a Division Bench of that High Court adopted the view which has been urged by learned counsel for the petitioner. Their Lordships held that where a person was tried and convicted of misappropriating certain sums of money during a certain period and was again put on trial in respect of certain other sums of money alleged to have been misappropriated during the same period, the charge in the previous case should be taken to include all the items misappropriated by the accused in the course of the same transaction during that period and that the subsequent trial was barred by Section 403 of the Code.
In that case also the petitioner was charged for the misappropriation of the gross sum of Rs. 2738 alleged to have been misappropriated by him during the period from 18-3-1911 to 26-10-1911, which was evidently covered by the period for which the petitioner was charged in the previous trial. Their Lordships took the view that the underlying principle of Section 222(2) is that the legislature apparently intended that where there is to be a trial for misappropriation of a gross sum, there should be only one trial for such an offence committed within the period covered by the defalcation.
Learned Counsel has also drawn our attention to a Single Judge decision of this Court in Mayadhar Swain v. Netrananda Mahanty, AIR 1941 Pat 606 wherein the above Madras case was considered, and it was observed that where recourse could be had to Section 222(2), it must be assumed that the amount in respect of which the petitioner was charged was the whole of the amount misappropriated by him within the period mentioned in the charge. In the case for consideration before the learned Judge, however, it was held that Section 222(2) in fact was not relevant, as no recourse to Section 222(2) was had Learned counsel has urged that the learned Judge of this Court did not disapprove of the principle of law laid down in the above Madras case.
Learned counsel for the State, however, has urged in reply that so far as the above Patna case is concerned the learned Judge had no occasion to consider the real effect of sec, 222(2) read withSection 403 of the Code, inasmuch as on the facts of that case this question did not pointedly arise. Since on the facts of that case it was found that Section 222(2) was not relevant, the observation in that case would be of no assistance to the petitioner. Mr. Varma for the State has drawn our attention to a series of decisions of the other High Courts, holding a contrary view, such as, Nagendra Nath Bose v. Emperor, 27 Cal W.N. 578 : (AIR 1923 Cal 654), Sidh Nath v. Emperor, AIR 1929 Cal 457 Emperor v. Anant Narayan, AIR 1945 Bom 413 and Brijiwan Das v. Emperor. 32 Cri LJ 376 : (AIR 1931 All 209).
He has also urged that the express terms of Section 222(2) also would be in consonance with the view of the Calcutta and other High Courts and are not consistent with the construction put upon that, section by their Lordships of the Madras High Court. His contention is that it is no doubt correct to say that when, on account of the specific provisions of Section 222(2) an accused is charged with criminal breach of trust or dishonest misappropriation of money, a number of offences which would otherwise be independent offences can be lumped together in one trial and would constitute one offence. This being an enabling provision of law it embodies only a rule of convenience.
This, however, does not preclude a second trial where, even if there be a number of other distinct offences of the same nature, there may be likewise another trial consisting of those offences being lumped together and constituting in accordance with this provision one distinct offenceSection 222(2) does not go beyond this construction and, therefore, the view expressed by the Madras High Court in the aforesaid decision is not sound and should not be acted upon in preference to the decisions of the Calcutta High Court which have laid down a contrary proposition. It appears to me that the contention of the learned counsel for the State is one of substance.
The decision of the Calcutta High Court in the case of 27 Cal W.N. 578 : (AIR 1923 Cal 654) which was the decision of Greaves, J., on a difference of opinion between Newbould J. and Suhrawardy, J., is along the line urged by learned counsel for the State. The learned Judge took the view that the case was covered by Section 222(2) and the essence of the offence was the misappropriation and not the time within which it took place and if the amount in question as having been misappropriated and forming the subject-matter of the charge in a Sub-sequent trial was not included in the gross sum for the misappropriation of which the accused was charged in the previous trial, there was nothing wrong in having a subsequent trial for that amount. If, however, the amount in question in the subsequent trial was the subject-matter of the charge in the previous trial, the petition would be quite different. The learned Judge laid down further that the argument before him proceeded on the ground that the sum of Rs. 100 for the misappropriation of which the petitioner was being proceeded against in the subsequent trial was not included in the sum of Rs. 18,924/4/- for which he was charged in the previous trial and that the facts relating thereto were not known to them at the time of the previous charge and the matter had been argued on this basis.
In the case of AIR 1929 Cal 457, another Division Bench of that High Court while following the previous decision of that Court laid much stress upon the fact that it would make a considerable difference if it were shown that the defalcation which formed the subject of the charge in the second trial was within the knowledge of the prosecution and so could or might have been included in the charge in the first trial. The principle, therefore, of the decision in the case of 27 Cal WN 578 : (AIR 1923 Cal 654) has been explained by the subsequent decision as resting upon the crucial question with regard to prosecution having knowledge of the defalcation which was sought to be made the subject-matter in the subsequent trial.
If there is knowledge, subsequent trial might be barred. If there is no knowledge, subsequent trial may not be barred. It seems to me, however, that there is considerable force in the argument on behalf of the State before us that so far as Section 222(2).
is concerned there is no such distinction. It is true no doubt that the question of knowledge or absence thereof may be material in connection with the construction of Section 403 of the Code read with Section 222(2), but this qualification cannot be read into Section 222(2) itself. As it is, however, the above observation of the Calcutta High Court must be read in connection withSection 403 of the Code which also came up for consideration before their Lordships.
In the case of 32 Cri LJ 376 : (AIR 1931 All 209) the Allahabad High Court also adopted the construction of Section 222(2) as prevailed in the High Court of Calcutta, that is to say, that the trial in respect of a gross sum alleged to have been embezzled between two specified dates does not bar a second trial in respect of another sum embezzled on intermediate days but not included in the gross sum for which the earlier charge was framed. I am, therefore, inclined to accept the contention on behalf of the State that the second trial in terms of Section 222(2) of the Code of Criminal Procedure would not be barred.
4. Learned counsel for the petitioner has, however, contended that even if the second trial would not be barred in terms of Section 222(2) the proceedings should still be quashed under Section 403 of the Code of Criminal Procedure for more than one reason. In the first place, the charge as it stands was not for specific items between the two extreme dates in question i.e., 7-3-1953 and 14-10-1953, but for the entire amount defalcated during that period. Even if this may not be taken to distinguish this case from the other cases, in any view this should be sufficient ground for this Court to exercise its revisional jurisdiction in terms of sec, 403 to quash the present trial.
The accused had notice of the fact that the entire amount of defalcation alleged by the prosecution to have been made by him was the sum of Rs. 2842/13/- for which he was being convicted. If the prosecution felt that there were other items about which investigation was not complete or there was likelihood of some other items of misappropriation being discovered for which the petitioner might have been charged, the prosecution should have been careful enough to frame the charge in such a manner as, while disclosing the two extreme dates, would be confined to only the specific items.
If that were so, it was further necessary on behalf of the prosecution to show that the other items of the prosecution case for which the petitioner was charged in the subsequent trial were either not within the knowledge of the prosecution in course of the previous trial or there was then a likelihood of their being discovered, or that the investigation in respect of these items was not complete. If that were so it might be difficult for the petitioner to contend that the subsequent trial should he quashed. This was the distinction made by the Calcutta High Court in reference toSection 403 of the Code, in the case of AIR 1929 Cal 457 referred to above.
This was also the distinction which appeared to their Lordships of the Allahabad High Court in the case cited above. He has further contended that even if it were not so, in the interest of justice and equity, the present trial should not be allowed to continue, because the petitioner was already harassed in the previous trial in respect of a large number of items, and it will ordinarily serve no useful purpose to have a second trial for an identical offence alleged to have been committed during the same period which might well have been included in the previous trial and which even if included, would not have affected the result. In the present case, a sentence of five years' rigorous imprisonment was awarded in respect of 27 items.
It would hardly matter if the items were 30 instead of 27. It is no doubt true that the High Court of Calcutta in the aforesaid case of AIR 1929 Cal 457 laid considerable stress, as I have said on the fact that the prosecution had knowledge of the items of misappropriation for which the accused was being charged in the subsequent trial while the previous trial was continuing. Their Lordships observed on the point as follows :
"The present case is one in which the prosecution knew perfectly well what was the gross sum in respect of which the petitioner had committed criminal breach of trust. It was a sum of Rs. 3651-5-3. They could have, if they liked, proceeded against the petitioner in respect of this gross amount under Section 222(2), Criminal P.C. Instead of doing so they elected to proceed on three items and got the petitioner convicted. Then they picked up three other items and got the accused tried a second time. Though Section 403, Criminal P.C., may not strictly apply in its terms to a case like the present, still there is abundant authority for the view that a second trial in circumstances such as these ought not to have been allowed to be held."
Their Lordships then referred to a number of decisions of the various High Courts for the proposition that even where Section 403 does not in terras apply a second trial should not be allowed to proceed if the case would be generally covered under Section 403 which incorporates the principle of autrefois acquit or autrefois convict. This principle has been followed by this Court in Garbhu Mandal v. The State, 1955 BLJR 163 at p. 165. The identical principle has also been adopted by the Bombay High Court in AIR 1945 Bom 413, wherein it was observed that even though the plea of autrefois acquit under section 403 was not technically available to the accused, the principle of it was available to him in the interest of justice and that the accused should not) be tried again in respect of another offence and should be acquitted.
The case of Emperor v. Chinna Kalliappa Gounden, ILR 29 Mad 126 was also relied upon in this connection. Mr. Varma for the State, however, brought to our notice the subsequent Full Bench decision of the Calcutta High Court in Purnananda Das Gupta v. Emperor, AIR 1939 Cal 65. The view laid down in that case is that the principles underlying the English Common Law pleas of autrefois convict and autrefois acquit have been embodied so far as this country is concerned within the limits of the language of Section 403 itself, and effect must be given to the clear and precise words of the section.
The language of the section cannot be stretched nor the principles extended so as to give an accused the benefit of the spirit underlying the provisions of that section as it would be bewildering and might result in great injustice to the community at large. It appears that the Full Bench decision of the Calcutta High Court has expressed an opinion on the scope of Section 403circumscribing it within the limits of the express terms of the section which is not consistent with the view adopted by the other High Courts.
That may be so, and learned counsel for the State has urged that if Section 403 is construed strictly as laid down by the Full Bench of the Calcutta High Court, then the second trial cannot be stopped by this Court in exercise of its revisional jurisdiction, inasmuch as the items of defalcation for which the petitioner is being charged in the trial giving rise to the present application were not included in the previous trial. But as at present advised. I am not inclined to adopt the decision of the Full Bench of the Calcutta High Court in preference to the wide construction of sec, 403 which has found favour with the learned Judges of the other High Courts in the country.
5. In that view of the matter, there being nothing on record to show that the three items of defalcation for which the petitioner has been charged were not within the knowledge of the prosecution, as the learned Additional Sessions Judge has also noticed that the learned Assistant Public Prosecutor failed to satisfy him as to why these three items were not included in the previous trial, and further, in the absence of any adequate explanation for its non-inclusion in the previous trial in spite of resort to Section 222(2) of the Code of Criminal Procedure, I am inclined to hold that it will not be conducive to justice in the circumstances of the case, rather it will be vexatious, to have a piecemeal trial like this. In my opinion it was a fit case in the circumstances as they stand, in which these three items also could well have been included in the previous trial. That being the position. I would hold that the present trial should not continue, and the proceedings against the petitioner are accordingly quashed.
6. The application is allowed, and the rule is made absolute.
Tarkeshwar Nath, J.
7. I agree.