MOHAN SINGH Vs. EMPEROR

JUDGEMENT

(1.) The learned Judge in this case had the acquiescence of all three assessors and one cannot help feeling that, probably, in recording a conviction, he was not far wrong in the sense that by a sort of rough justice he has arrived at a right determination. Bat nothing is more dangerous in criminal law than the system of convicting a person on some vague general notion when the real charge has not been established. In this case I have grave doubts whether the form of the charge in which it was sent to Sessions was one which the learned Sessions Judge ever ought to have entertained. Undoubtedly, Section 222(2) of the Code of Criminal Procedure enables a man to be charged for criminal breach of trust in respect of a gross sum received by him between certain dates without specifying any particular item of any particular date in respect of the constituent parts of the gross Sum, but I think that that is meant for a case where he is charged with embezzling the gross sum. The authority referred to during the argument in this case on behalf of the, Emperor v. Ibrahim Khan 7 Ind. Cas 180 : 33 A. 36 : 7 A.L.J. 897 : 11 Cr. L.J. 412, certainly bears out that view. In that case the accused was charged with having committed a criminal breach of trust in respect of a gross sum of Rs. 208- 12 fees which he had received on 18 different occasions from persons in respect of grazing cattle. It was no part of his duty to expend any part of that sum. It was his duty to pay it into the Treasury. He did not do so but appropriated it to his own nee. That was a gross sum within the meaning of Section 222(2), as was decided by the learned Judges in that case. But that is not the case here, and Section 222 trust be construed and controlled in the light of the governing provision which requires such particulars to be given as are reasonably sufficient to give the accused notice of what he has got to meet, Sub-Clause (2) is merely a particular illustration which the Legislature has enacted so as to make the case free from doubt which might otherwise have risen. Bat the cases must be very rare in which, where a trader appoints a general agent or manager of a sub-branch, with general authority to sell goods, collect money, purchase goods, pay labour dues and general expenses, it is sufficient to ding into the charge an alleged balance or net profit which the agent is supposed to have earned and say that, in respect of that net profit, he is guilty of misappropriation of every rupee which he cannot produce or explain. One difficulty in that procedure is, as it seems to me, that it offends against the principle that the onus is on the prosecution and they have no right to throw the onus upon the accused in respect of the charge. They must make up their mind what amount they are prepared to prove he has lawfully received and lawfully expended and what total sum, and how that total sum is made up, he has either unlawfully expended or failed to account for in snob a way as to leave no doubt that he has been engaged in criminal misappropriation.

(2.) In this case I think, having regard to the fact that the law in this country does not permit an accused person to give evidence on oath and, therefore/puts considerable obstacles in the way both of the prosecution and of an accused person in a case of this character, the power to examine the accused at the trial with a view to enable him to give an explanation ought to be carefully exercised. Reading the examination of the abused in this case and the somewhat rough and ready method by whish the learned Judge arrived at his final conclusion, the learned Judge seems to me to have gone dangerously near filling up the gaps in the prosecution evidence by the answers extracted from the accused in his examination.

(3.) It is to be feared that the provisions of Section 342. Criminal Procedure Code, are sometimes either misunderstood or used for a purpose for, which they were never intended.