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Emperor v. Janeshar Das And Another
Structured Summary of the Provided Legal Opinion
Factual and Procedural Background
A preliminary order was passed in this matter on 4 December 1928; the opinions expressed in that order were tentative and the Court re-examined the matter in the present opinion. Two servants of the treasurer of the Muzaffarnagar treasury, Janeshar Das and Khushi Ram, were charged with three offences. Each offence was framed in the alternative as either criminal breach of trust (embezzlement) or abetment of such breach. The alleged misconduct involved a deficiency on a certain date in stamp labels kept in the double lock of the treasury and in cash kept in the single lock. Three items of defalcation were selected for prosecution (two concerning stamps and one concerning cash). The prosecuting agency was unsure which of the two men committed the breaches and which abetted, and the two accused were tried jointly.
On behalf of Janeshar Das it was argued (in substance) that he was of weak intellect and that Khushi Ram was the principal wrongdoer; no contention was put forward by him that the trial was illegal. Mr. Banerji, appearing for Khushi Ram, strongly contended that the joint trial was illegal and that Khushi Ram had been prejudiced by being jointly prosecuted with Janeshar Das.
Legal Issues Presented
- Whether, under the way the charges were framed (each offence in the alternative as embezzlement or abetment), Khushi Ram was effectively prosecuted on six distinct charges (three offences each with two alternatives) or on three alternative charges (each alternative forming a single charge).
- Whether the provisions of Section 239 of the Criminal Procedure Code should be read in conjunction with, or exclusively of, the provisions of Sections 234–236 (and related sections) of the Code when deciding the propriety of joint trials of multiple accused.
- Whether the framing of alternative charges (offence and abetment) in multiple counts contravenes the requirements and spirit of Section 233 (one charge per distinct offence) and the exceptions that follow it.
- Whether the joint trial as conducted was illegal and, if so, whether prejudice must be presumed and what the appropriate remedy should be.
Arguments of the Parties
Janeshar Das (accused)
- Argued that he was of weak intellect ("born a fool") and suggested Khushi Ram was the principal wrongdoer ("the blackguard of the piece").
- No allegation was made on his behalf that the joint trial was illegal.
Khushi Ram (accused, represented by Mr. Banerji)
- Contended that the trial was illegal because Khushi Ram had been charged effectively with more than three offences — in fact six — since each of the three counts alleged against him included an alternative charge of breach of trust and abetment.
- Argued that joint prosecution with Janeshar Das had prejudiced his case.
The Crown / Government Pleader (Prosecution)
- Contended that the provisions of Section 236 should be read with Section 239 so as to permit the manner of charging and joint trial adopted in this case.
- Relied on the proviso in Section 239 (the words "and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges") to support broader application of earlier provisions.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ram Prasad v. Emperor, A.I.R. 1921 All. 246 | Interpretation that Sections prior to Section 239 (e.g., Sections 234–238) refer primarily to a single accused and should not be read indiscriminately with Section 239; the legislature differentiated between cases of a single and several accused. | The Court relied on the observations in Ram Prasad to support the view that Section 239 must be considered separately and that earlier sections are not automatically applicable to joint trials of more than one person. |
| Bal Gangadhar Tilak (Re), [1909] 33 Bom. 221 | The Bombay High Court's view that Sections 234, 235, 236, and 239 were not mutually exclusive (i.e., they could be read together). | The Court distinguished this authority on the basis that the Bal Gangadhar Tilak case involved a single accused and therefore did not engage the interpretive issues raised by Section 239's specific treatment of multiple accused; the Court did not follow this reasoning for the present context. |
| Emperor v. Sheo Saran Lal, [1910] 32 All. 219 | A Single Judge's refusal to extend the exception in Section 234 by incorporating the exception mentioned in Section 235(1); supporting a restrictive reading of joinder exceptions. | The Court cited this authority as further support for the view that the exceptions in Sections 234, 235 and 236 should be treated as mutually exclusive and not to be read so as to expand the scope of Section 239. |
Court's Reasoning and Analysis
The Court began by recalling that a preliminary order on 4 December 1928 was tentative and that the matter would be re-examined. The statutory framework governing joinder and joint trials was analysed with primary focus on Section 239 of the Criminal Procedure Code and its relationship to the sections preceding it (notably Sections 233–236 and 234).
The Court noted the earlier wording of Section 239 (as it stood before the 1923 recast) and then analysed the effect of the 1923 recasting (Act 18 of 1923), which expressly permitted joint trial "of persons accused of more than one offence of the same kind within the meaning of Section 234, committed by them jointly within the period of twelve months." From this textual change the Court inferred that when more than one person is tried jointly one cannot indiscriminately apply the provisions of the Code that pertain to a single accused.
The Court considered the proviso in Section 239 ("and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges") and concluded that those words operate more as a limitation than an expansion for joint trials — they do not permit unrestricted application of earlier sections to cases of multiple accused.
Turning to the concrete question in the case, the Court analysed whether each alternative framing (embezzlement or abetment) should be regarded as one charge or as separate charges. The Court observed that if an offence and abetment were to be treated as the same charge the specific clause (b) in Section 239 (permitting joint trial of persons accused of an offence and persons accused of abetment) would have been unnecessary when the section was recast. That legislative choice suggested the legislature intended to treat offence and abetment as distinct for purposes of joinder.
The Crown's submission that Section 236 (allowing charging in the alternative where a single act may constitute different offences) should be read with Section 239 was considered. The Court noted that Section 236 itself identifies different charges in the alternative rather than consolidating them into a single charge. The Court also reviewed prior authorities: the Bombay High Court in Bal Gangadhar Tilak had found Sections 234–236 and 239 not mutually exclusive, but that case involved a single accused; by contrast, other rulings (including Ram Prasad and Emperor v. Sheo Saran Lal) supported a restrictive reading.
Synthesizing the textual analysis and precedents, the Court concluded that Sections 234, 235 and 236 are to be treated as mutually exclusive in relation to Section 239 and that Section 239 stands by itself when multiple accused are tried jointly. Applying that principle to the instant facts, the Court found that where each of three counts was framed in the alternative as embezzlement or abetment, the accused (Khushi Ram in particular) faced six distinct sets of circumstances (three offences each with two alternatives). Subjecting a man to six distinct sets of circumstances in a single joint trial runs counter to the general rule in Section 233 (that every distinct offence is to have a separate charge) and is not covered by the exceptions; therefore the joint trial was legally impermissible.
On the question of prejudice, the Court held that prejudice need not be separately proved: the trial's illegality and the confusion arising from being called upon to meet six distinct sets of circumstances in one trial were sufficient to presume prejudice. The Court observed an additional possible prejudice arising from Janeshar Das attempting to shift blame onto Khushi Ram.
Holding and Implications
Holding: The Court set aside the convictions and sentences of Janeshar Das and Khushi Ram and ordered a retrial of both accused.
Implications and Consequences:
- The Court concluded that, for the purposes of joint trials of more than one accused, the provisions of Sections 234, 235 and 236 must be treated as mutually exclusive with Section 239, and that Section 239 stands on its own; earlier provisions applicable to a single accused cannot be indiscriminately applied to joint trials.
- Because each of the three counts was framed in the alternative as embezzlement or abetment, Khushi Ram was effectively tried for six separate sets of circumstances and the joint trial was illegal; prejudice is presumed from that state of affairs.
- The prosecution is to decide whether the retrial should be joint or separate; the Court indicated that a separate trial might be more advisable.
- The Sessions Judge of Meerut was requested to ensure that some other Sessions Judge (i.e., not the same learned Judge who convicted Khushi Ram) conduct the fresh trial; the Court regarded Khushi Ram's request that the same Judge not retry him as reasonable.
- Janeshar Das and Khushi Ram shall remain on the same bail until any further order by the Sessions Judge who retries them.
- No question of further or broader precedent beyond the Court's stated view on the exclusivity of Sections 234–236 and Section 239 was expressly announced beyond the direct holding and instructions for retrial.
1. I passed a preliminary order in this matter on 4th December 1928. The opinions expressed therein were merely tentative and the whole matter shall be examined over again in the present order. Janeshar Das and Khushi Ram, two servants of the treasurer of the Muzaffarnagar treasury, were charged with three offences and each offence was framed in the alternative either of criminal breach of trust or abetment thereof. There was found deficiency on a certain date in stamp labels kept in the double lock of the treasury and in cash kept in the single-lock. Inquiry was made and the prosecuting agency appears to have been doubtful whether Janeshar Das committed the breach of trust and Khushi Ram abetted him, or whether Khushi Ram committed the breach of trust and Janeshar Das abetted him. Three items of defalcation were chosen, two relating to stamps and one relating to cash, and as regards each item the charge was framed in the alternative. Both Janeshar Das and Khushi Ram were "tried jointly. In this Court the argument of Janeshar Das has been that he was born a fool and the blackguard of the piece was Khushi Ram. On his behalf no allegation was made as to the illegality of the trial. This point, however, was stressed with great force by Mr. Banerji on behalf of Khushi Ram as the learned Counsel appears to have felt that the cause of Khushi Ram was damaged by joint prosecution with Janeshar Das.
2. The provisions of Section 239, Criminal P.C., lay down how persons will be charged and tried together. Mr. Banerji argued that Khushi Ram was really charged for more than three offences, in fact six, as in each case he was charged in the alternative for breach of trust and for abetment thereof. This Court has held that the provisions of Section 239 of the Code are to be considered exclusively without the help of the provisions of Sections 234 to 238. In 1921 in the case of Ram Prasad v. Emperor A.I.R. 1921 All. 246 Kanhaiya Lal and Wallach, JJ., had before them the trial of more than one person for three offences of dacoity. They observed:
The four accused could also have been triad jointly in one trial for any one of the three dacoities in which they are alleged to have taken part, but all could not be tried together at one trial for the three dacoities, as these offences were not committed in the same transaction, Section 234 is one of a number of sections which are grouped together under the heading of "joinder of charges." This may, and in fact does, refer to charges both against single and several accused. But the sections under the general heading relating to these respective cases are kept separate. Section 233 lays down a general rule that for every distinct offence there is to be a separate charge and that every such charge is to be tried separately, except in the cases mentioned in Sections 231, 235, 236 and 239. Sections 234 to 238 by their terms refer to the case of a single accused. Section 239 deals with the case where more persons than one are accused. The legislature intended to and did by these sections differentiate between the cases of a single and several accused. It cannot be said that all the sections prior to section 239 apply to both these cases although in terms they refer to one only, viz., that of a single accused. The existence of a Section 239 specifically dealing with the case of several accused, and the arrangement of the sections to which We have referred, constitutes such a repugnance in the context as prevents us from reading "a person" in Section 234 as including several persons.
3. These observations were made prior to 1923. The provisions of section 239 at that time were as follows:
When more persons than one are accused of the same offence or of different offences committed in the same transaction, or when one parson is accused of committing any offence and another of abetment of, or attempt to commit such offence, they may be charged and tried together or separately, as the Court thinks fit; and the provisions contained in the former part of this Chapter shall apply to all such charges.
4. The section was entirely recast by act 18 of 1923, and at present a joint trial is permitted of persons accused of more than one offence of the same kind within the meaning of Section 234, committed by them jointly within the period of twelve months. Obviously, therefore, when more persons than one are tried jointly reference cannot be made to provisions of the Code previous to Section 239 indiscriminately. If that had been the intention it would not have been necessary to state definitely that persons accused of more than one offence of the same kind within the meaning of Section 234 committed by them jointly within the period of twelve months may be tried together. It is important to remember this because the Government Pleader referred the Court to the words at the end of the section:
and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges.
5. Those words existed when the Bench ruling in the case of Ram Prasad was pronounced and the learned Judges refused to read the provisions of section 234 conjointly with the provisions of section 239. In my opinion the words at the end of the section are more by way of limitation than extension. The serious question that arises is whether the appellants should be considered to have been prosecuted on six charges, or on three alternative charges, each alternative case forming one charge. Mr. Banerji, in my opinion, rightly pointed out in this connexion that if the legislature considered an offence and an abetment thereof in the alternative to be one charge there was no necessity to preserve Clause (b), Section 239 when that section was recast in 1923. That clause permits the joint trial of persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence. If an offence and the abetment thereof were considered to be the same offence the case would have been covered by Clause (a) without any specification in Clause (b). The argument on behalf of the Crown was that the provisions of section 236 should be read along with the provisions of Section 239. Under Section 236 if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once, At present I am not called upon to give an opinion whether this provision and the provisions of Section 234 as to trial of accused persons for three offences committed within the space of twelve months are exclusive or not. The question is whether the provisions of section 236 may be utilized to declare the charge in the alternative of embezzlement and abetment thereof to be one charge. The provisions of section 236 themselves do not designate these separate charges as one charge, but designate them as different charges in the alternative, and that is why special permission is given under the Act for the trial of such charges. The Bombay High Court in re Bal Gangadhar Tilak [1909] 33 Bom. 221, was of opinion that Sections 234, 235, 236, and 239 were not mutually exclusive. It may be respectfully submitted that there was only one person up for trial in that case, and the consideration of the provisions of section 239 did not arise in that case. We have also seen how a Bench of equal authority of this Court held several years later that the provisions of section 239 were exclusive. A Single Judge of this Court in 1910 in Emperor v. Sheo Saran Lal [1910] 32 All. 219 was not prepared to follow the reasoning of the Bombay High Court in the case of Bal Gangadhar Tilak. In that case attempt was made to combine the provisions of Section 234 and of Section 235(1). It was argued there that if an accused person goes through three similar transactions within the period of 12 months, committing in each transaction the same series of offences, he can be tried at one and the same trial on account of all offences committed in the course of the three transactions even if they total more than three. The learned Judge refused to extend the exception mentioned in Section 234 by adding to it the exception mentioned in Section 235(1).
6. So far as this Court is concerned the opinion has been that the provision of sections 234, 235 and 236 are mutually exclusive. There is all the more reason, therefore, to hold that the provisions of section 239 stand by themselves and the scope thereof cannot be extended by use of the provisions of sections not referred to in section 239. In my opinion there is considerable reason in this view. When a man is charged in the alternative with embezzlement or abetment thereof he has to meet two distinct set of circumstances. When in three separate cases he is charged in the alternative he has to meet six distinct set of circumstances. This would be against the spirit of the provisions of section 233 and would not be covered by any of the exceptions detailed in the sections that follow Section 233. In my opinion Khushi Ram was really tried for six offences. The trial was illegal, and the question whether Khushi Ram was prejudiced or not does not arise. At the same time it is possible that he was prejudiced in so far that Janeshar Das has attempted to throw the entire blame On him. Prejudice must also be presumed from the confusion arising from a man being called upon to face at a single trial six sets of circumstances.
7. In the result I set aside the convictions and sentences and order a retrial of Janeshar Das and Khushi Ram. It will be for the prosecution to decide whether they should be tried jointly or separately. Possibly a separate trial would be more advisable, and the point should also be kept in view that so far as this Court is concerned the provisions of sections 234, 235, and 236 are considered to be mutually exclusive. A request was made on behalf of Khushi Ram that the same learned Judge who convicted him may not hold the fresh trial. This is a reasonable request. The Sessions Judge of Meerut is requested to see that the trial is held by some other Sessions Judge.
8. Janeshar Das and Khushi Ram are on bail. They shall remain on the same bail until any further order is passed by the Sessions Judge who retries them.
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