CHITTARANJAN SAHA Vs. STATE

JUDGEMENT

(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 :

(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 with Section 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 offence Section 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 with Section 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.