OSAMAN ALI Vs. STATE

JUDGEMENT

(1.) The simple point that arises for consideration in these Revision Petitions is whether the prosecution in respect of two charges of criminal misappropriation should not be allowed to proceed with and should be quashed in view of the fact that two other charges of criminal misappropriation against the same accused have ended in acquittal.

(2.) The main ground that is urged on behalf of the petitioner is, that Section 222 (2) of the Code of Criminal Procedure, permitted the inclusion of a gross sum in respect of which the offence of criminal misappropriation is alleged to have been committed within a period of one year, without having to specify the particular items and the exact dates, and the charge so framed shall he deemed to be a charge for an offence within the meaning of Section 234, Criminal P. C. From this it is contended by the learned counsel for the petitioner, that as the prosecution could have preferred one charge in respect of the gross amount made up of several sums misappropriated by the accused, including the sums which were the subject-matter of the two charges that are now being proceeded with, it would he illegal for the prosecution to try the accused on these charges. The plea apparently is based on Section 403, Criminal P. C., which embodied the well-known principle of autrefois acquit. Section 403, Criminal P. C., is as follows: "403 (1), A person who has once been tried by a Court of competent jurisdiction for an of-fence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237. (2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, Sub-section (1). (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such lastmentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted. (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) Nothing in this section shall affect the provisions of Section 26 of the General Clauses Act, 1897, or of Section 188 of this Code. Explanation: The dismissal of a complaint, the stopping of proceedings under Section 249, the discharge of the accused or any entry made upon a charge under Section 273, is not an acquittal for the purposes of this section." It may be seen from this section that the following conditions required to be fulfilled before that Section could be taken advantage of by an accused person: (1) He should have once been tried by a Court of competent jurisdiction for an offence; (2) He should either have been convicted or acquitted of the offence; and (3) Such a conviction or acquittal should have remained in force. Once the above conditions are fulfilled, the accused can claim that he is not liable to be tried again for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, Criminal P. C., or for which he might have been convicted under Section 237, Criminal P. C.

(3.) The Section itself recognises that where a person is so convicted or acquitted of any offence, he may afterwards be tried for any distinct offence for which a separate charge might have been made against him in the former trial under Section 235, Sub-section (1). In other words, Section 403 has no application to a case where the subsequent offence for which the accused was being tried did not form part of or had nothing to do with the offence for which he had already been tried e. g., where an accused person is alleged to have committed four distinct and separate acts of misappropriation for separate ascertained sums of money, it is open to the prosecution either to try three of them, if committed within the space of one year, at one trial and try the remaining charge at another trial or try each one of these charges separately in separate trials; for Section 233 clearly lays down that for every distinct offence of which any person is accused of, there shall be a separate charge and that every such charge shall he tried separately. The separate trials need not be held in cases covered by Sections 234, 235. 236 and 239, Criminal P. C. The correct legal implications of S, 233, Criminal P. C., have been considered at great length in a Bench Decision of this Court to which I was a party in Bhupalli Malliah, In re. Referred Trial No. 40 of 1958 and Criminal Appeals Nos. 613 to 615 of 1958: AIR 1959 Andh Pra 477. The principle of framing charges, therefore, is, that unless otherwise indicated, every distinct offence should be subject-matter of a separate charge and unless the case is covered by one or the other of the four sections quoted in Section 233, Cr. P. C., there must necessarily be a separate trial in respect of each charge and that even in cases which fall within sections 234, 235, 236 and 239, it would still be open to the prosecution to have these charges tried separately.