BABULAL CHAUKHANI Vs. KING

JUDGEMENT

(1.) These two consolidated appeals depend substantially on the same issues of fact and involve the same questions of law. They were brought by special leave of His Majesty in Council in order to obtain a decision on the true effect of S. 239 (d), Criminal P.C., 1898, which provides that persons who are accused of different offences committed in the course of the same transaction may be charged and tried together. The question has been whether the correctness of the joinder which depends on the sameness of the transaction is to be determined by looking at the accusation or by looking at the result of the trial. Certain subsidiary questions have also been raised as affecting the validity of the trial and conviction. These are not matters which would justify special leave to appeal being granted upon the principles which this Board have adopted in guiding this discretion in criminal matters, and should not have been brought before this Board but as the questions have been raised, their Lordships will in due course shortly deal with them. The first appellant, Babulal Choukhani, has extensive business interests, including the ownership and operation under managers of the Bharat Lakhsmi Cinema at-Calcutta. He was convicted of theft of electricity under S.39, Electricity Act, 1910, and sentenced to fine and imprisonment. His conviction by the Magistrate for conspiracy was quashed on appeal by the High Court The second appellant was convicted of aiding and abetting the first appellant; the conviction given against him for conspiracy being likewise quashed. The separate thefts could only be treated in a case like this as forming part of the same transaction if they were unified as being overt acts done in pursuance of a conspiracy. The facts can be very shortly stated. The Calcutta Electric Supply Corporation were in the year 1934 concerned to find a discrepancy between units of energy generated and those accounted for by sales in excess of what would normally be experienced by the regular causes of wastage, such as transmission or conversion losses. Special inspectors of meters were appointed and in due course evidence of an extensive system of thieving was obtained. The method adopted was to tamper with the meters at consumer's premises in such a way as to conceal the fact of tampering. The actual work was done by skilled operatives, but their activities were organized by a number of individuals who approached the containers and generally agreed to share with the consumers the amounts saved by the fraudulent alteration of the meter readings. They then employed and made terms with the actual tamperers. The second appellant was one of the organizers. The thefts which were charged against the first appellant were at his Cinema. The facts as to the actual theft were held to be proved both by the Magistrate and by the High Court. It is not now suggested there was no evidence to justify the findings on these matters.

(2.) In order to examine the main question of law which was raised, viz the construction of S.239 (d), Civil P.C., it is necessary to trace in the briefest manner possible the course of the proceedings. On 17 November 1934, the Electricity Corporation having obtained sufficient prima facie materials to justify that course, lodged a complaint before the Chief Presidency Magistrate at Calcutta that their electricity was being stolen, with particular reference to the first appellant's Cinema and also to another cinema with which he was not connected. The police investigated the matter and on 29 January 1935, made a report to the Chief Presidency Magistrate naming 23 persons, including the two appellants, and accusing them of being parties to a criminal conspiracy at Calcutta, Howrah and other places in British India to commit theft of the Corporation's electric energy and of dishonestly abstracting and using electricity in pursuance of that conspiracy at the two cinemas and other places in British India. Mr. Sinha, the Chief Presidency Magistrate, who commenced the hearing on 29 January 1935, framed charges against 12 persons of the 23 persons accused, after hearing evidence in chief from 36 persons, the most important witnesses being three approvers. The charges framed against appellant 1 were as follows : (1) jointly with the other accused, including appellant 2 :

(3.) That you between January 1934, and 20 January 1935, at 2 and 2/1 Chittaranjan Avenue (Bharat Laksmi Picture House), Jupiter Cinema, 66/2 Beadon Street, Sealdah Hotel, 225 Harrison Road and other places in Calcutta, Howrah and 24 Perganas, along with Krishna Chandra Shome, Bholanath Chatterjee, Hardwar Singh, Aswini Kumar Panja, Nanilal Ghose alias Noni Mistri, Putu, Md. Abdul Azim and Bhudeb Chindra Seth and others were parties to a criminal conspiracy to commit theft (dishonest consumption or user) of electric energy belonging to the Calcutta Electric Supply Corporation Limited by tampering with meters at the premises of the consumers and that in pursuance of the said conspiracy, theft of electric energy was in fact committed at Bharat Laksmi Picture House, Jupiter Cinema and other places and thereby committed an offence punishable under S.120-B, I. P. C , read with S.39, Electricity Act, and S.379, I.P.C., and within the cognizance of this Court. (2) against appellant 1 alone :