STATE OF MAHARASHTRA Vs. LALDAS

JUDGEMENT

(1.) His Lordship, after narrating the facts, proceeded :]

(2.) At the hearing of this appeal Mr. Jahagirdar has raised two points of law and it would be convenient to deal with them before proceeding to consider the merits of the case. Mr. Jahagirdar says that the course adopted by the prosecution in the present case is unusual in that two separate cases have been filed against the accused virtually in respect of the same conspiracy. Sessions Case No. 13 of 1950 from which the present appeal arises is based upon the conspiracy between the four partners of the firm and four forest officers. The object of this conspiracy was that the partners of the firm should illegally cut the trees in the Government forest and remove them, and in accomplishing this object the forest officers had agreed to assist the partners by making false panchnamas and by abetting the illegal cutting and removal of Government trees. The prosecution case is that this conspiracy was formed between the members of the firm themselves in the beginning of December 1946 and the forest-officers joined this conspiracy later. The scene of operation of this conspiracy was in the Walheri Bari reserved forest, Hill Working Circle, between the villages of Walheri and Sojarhara. That is why the members of the firm have been substantively charged with the offence of committing theft under Section 379 and the forest officers have been charged with the offence of framing false record under Section 218. There are besides the charges of conspiracy and abetment against all the accused. Another criminal case was started against the partners of the same firm and two forest officers, Haribhan Sanaf and Mahadev Vedu, who are accused NOS. 4 and C in case No. 13 of 1950. This case was Sessions Case No. 14 of 1950. In this ease the prosecution alleged that all the accused had entered into a conspiracy to commit thefts of Government trees in Gloramal and Rapapur forests. The time when this conspiracy was formed is the same as the other conspiracy and the modus alleged to have been adopted by the conspirators is also the same. Mr. Jahagirdar says that the procedure thus adopted by the prosecution in starting two criminal cases against the accused was not only unfair, but is illegal. His contention is that in substance the prosecution case must be taken to be that there was one general conspiracy and that in pursuance of this conspiracy Government trees were cut by some of the conspirators in all the places covered by the two respective cases and the forest officers abetted the commission of this offence by framing false official record; if that is so, it was the duty of the prosecution to have put all the evidence against the accused in one case and not to have exposed them to two different cases. In this connection Mr. Jahagirdar has also referred to the fact that both the sessions cases were decided on the same day. Sessions Case No. 13 of 1950 ended in the conviction of the accused, whereas Sessions Case No. 14 of 1950 ended in their acquittal. The present appeal arises from the order of conviction and sentence passed by the learned Sessions Judge against the accused in Sessions Case No. 13 of 1950, and there has been no appeal by the State against the order of acquittal passed by the learned Sessions Judge in favour of the accused in Sessions Case No. 14 of 1950. Mr. Jahagirdar has attempted to rely upon some of the findings of the learned Sessions Judge in Case No. 14 of 1950. In fact, he has applied to us for leave to adduce as additional evidence the record of the said ease and the judgment in particular, in the appeal before us. It is true that in Sessions Case No. 14 of 1950 the learned Sessions Judge took the view that the trial of the accused in the said case was vitiated by reason of the fact that the charge in the said case was not included in the earlier case No. 13 of 19-50. In his opinion there was only one conspiracy charged against the accused, and it was illegal to have split up this conspiracy into two different charges presented in two different cases. It is also true that on the merits the learned Sessions Judge has made several findings which are in favour of the accused. In fact, the learned Sessions Judge was not satisfied at all that the prosecution had proved their case against the accused even on the merits and so he acquitted them of the offences charged. We do not think that we can allow this judgment or the evidence on which it is based to he tendered as additional evidence under Section 428, Criminal P. C. The two cases were separately tried, evidence was led separately in both of them and obviously the conclusions of the learned Sessions Judge in both the cases are based upon the evidence recorded in each of these cases. In our opinion, the application for additional evidence purporting to have been made under Section 428 is clearly misconceived and must be rejected. It is, therefore, unnecessary for us to consider whether the learned Sessions Judge was right in holding that the result of the splitting up of the conspiracy was to vitiate the second trial. There has been no appeal against the judgment of acquittal and we are not called upon to consider the propriety or correctness of the said conclusion of the learned Sessions Judge. But, whatever may be the position with regard to the second case, we do not see how the trial of the first case can be said to be vitiated. We are prepared to assume that according to the prosecution case there was one general conspiracy between the accused and in pursuance of this conspiracy Government trees were illegally cut and removed and false documents were prepared in regard to such cuttings both in the area covered by the present case and in the area covered by the other case. Even so, if in proving the charge of conspiracy under Section 120B read with Section 379 and 218 the prosecution choose to rely upon some acts of the conspirators committed by them in pursuance of the conspiracy, they would be entitled to ask for a conviction of the accused if they succeed in proving the charge. It is clearly not incumbent upon the prosecution to make all the acts committed by the conspirators the subject-matter of the charge. It is open to them to select some of the acts and charge the accused in respect of them. The argument that the splitting up of a conspiracy into two cases is bad may at best affect the second trial. It cannot affect the validity of the first trial at all. We must, therefore, hold that there is no substance in the argument urged by Mr. Jahagirdar that the present trial is vitiated by reason of the fact that some of the acts committed by the accused in pursuance of the alleged conspiracy were not included in the charge in the present case.

(3.) The second point of law which Mr. Jahagirdar has urged is based upon the charge framed against accused No. 7 under Section 218, Penal Code. This is charge No. 5 in the charges framed by the learned Sessions Judge and under it the prosecution case was that accused No. 7, who is the Assistant Divisional Forest Officer, was a public servant and had been charged as such public servant with the preparation of the record in connection with the inquiry of the illicit cuttings in the Walheri forest; according to the prosecution while making this inquiry accused No. 7 "in collaboration with accused NOS. 1 to 6 framed the panchanama of us trees only and appendices thereto, dated 11-2-1947 and other ancillary papers, viz., the two statements and the receipt of Balkisan Nathubhai of even date," and his two reports, dated 24-3-1947, in an incorrect manner with the necessary knowledge and intention as required by Section 218. Mr. Jahagirdar's contention is that the learned Sessions Judge had no jurisdiction, to take cognizance of the charge thus framed under Section 218, because the requisite sanction under Section 197 (1) (b), Criminal P. C., has not been obtained by the prosecution. If that is so, not only is the trial of accused No. 7 in respect of this particular charge void, but the whole of the trial of all the accused persons in respect of all the charges is rendered void by the absence of the requisite sanction, says Mr. Jahagirdar. We must, therefore, first consider whether the sanction obtained by the prosecution against accused No. 1 is valid under Section 197 (1) (b).