STATE Vs. RAM KANWAR

JUDGEMENT

(1.) This order shall dispose of the reference made on 28-7-1983 under Sec. 395(2) of the code of Criminal Procedure, 1973 (in short Cr. P.C.) by Sh. S.M. Aggarwal, Special Judge, Delhi. The question posed by this reference is whether it shall be just and proper to subject Ram Kanwar accused to the present fresh trial under Sees. 409/477-IPC and Sec. 5(l)(d) of the prevention of Corruption Act, 1947 in respect of 8 items of criminal breach of trust of money alleged to have been committed for a total sum of Rs. 10,048.13 P. during the year 1978 by employing the modus ope- randi of falsification of accounts in his capacity as cashier in the office of Director General of Civil Aviation, R.K. Pnram, New Delhi on the basis of a complaint ofShri R.N. Dass, Assistant Director (Admn.) made by him to the C.B.I, on 19-12-1979, registered with the CBI and incorporated into R.C. No. 50/79 on 26-12-1979 and wherein the charge sheet was filed on 31-8-1981, in the face of his previous trial which ended into his conviction passed by Shri R.P. Gupta then special judge, Delhi in respect of 4 other items of the same year i.e. of 1978 wherein the charge sheet had been filed on 1-7-1980 and the report wherein was dated 21-4-1979 on the basis of source information. In other words was it incumbent upon the investigating agency CBI to have deferred the filing of the charge sheet in respect of 4 items in the earlier case on 1-7-1980 and waited the completion of the charge sheet in respect of the remaining 8 items in the subsequent case (present case) and then filed the charge sheet of all the 12 items of the year 1978.

(2.) The learned Additional Sessions Judge after setting out the provisions of law contained in Sections 212(2), 219(1), 220(1) and 220(2) Criminal Procedure Code . was of the view that reading of the aforesaid provisions of law harmoniously together there was left no manner of doubt that the prosecution was under the legal duty to have filed a composite charge sheet against accused Ram Kanwar for all the items i.e. 4 of the previous charge sheet plus 8 of the present charge sheet regarding which accused, has allegedly committed the various offences of criminal breach of trust and falsification of accounts and criminal misconduct during the year 1978. The learned Additional Sessions Judge while reading the aforesaid provisions in conjunction with Section 300 Cr. P.C., was further of the opinion that the accused could not be tried for misappropriating another gross sum of money covered by the period for which he had been already tried and convicted in the previous case and that the charge in the previous case should be taken to include all the items allegedly misappropriated by him in the course of the same transaction during the year 1978. He was also of the opinion that otherwise it seemed difficult to conceive that the Legislature should have intended that under Section 212 the Prosecutor should be at liberty to prosecute for a gross sum misappropriated during a particular period consisting of certain items more than three in number and obtain in conviction for the same and then choose another gross sum consisting of different items alleged to have been misappropriated during the same period and have a separate trial for the second group of items. He ultimately came to the conclusion that what the Legislature apparently intended was where there was a different trial for misappropriation of the gross sum, there should be only one trial for such an offence committed within the period covered by the defalcation and thus opined that with the subsequent (present) trial of the accused was uncalled for as also unjust and grossly improper amounting to abuse of the process of the court and that the quashing thereof would serve the ends of justice. The order under reference also observes that the CBI and its investigating Officers were very well aware that the accused had been alleged to have committed the offences of criminal breach of trust, falsification of account and criminal misconduct for the 4 itmes pertaining to the year 1978 in addition to the remaining 8 items of the same year which were under investigation by the CBI as on 19-12-1979 on which date the complaint in the subsequent case was made and that the charge sheet in the first case had been filed on 1-7-1980 about 61 months after the complaint had been filed on 19-12-1979 in the subsequent case and that the CBI had failed to give any explanation for not including the remaining 8 items of the present charge sheet with the charge sheet filed, tried and concluded earlier and that the accused having already suffered a conviction in the earlier case, would stand greatly prejudiced if the further trial of truncated charge sheet of the same period was allowed to continue, even through there is no legal bar to the prosecution now pending against him.

(3.) In order to appreciate and adjudicate upon the question subjectmatter of this reference, it would be desirable to set out the provisions of law contained in Secs. 212, 218, 219, 220 and Sec. 300 Criminal Procedure Code . and the same are set out below :- "Sec. 212-Particulars as to time, place and person :