The Judgment op the Court was as follows:—
Mukerji, J.:— On a challan submitted by the police in which it was stated that the Petitioner had, as a Durwan in the employ of Messrs Sew Narain Golap Roy, committed criminal breach of trust in respect of a gross sum of Rs. 3,651-5-3 p., the Additional Chief Presidency Magistrate of Calcutta issued warrant against the Petitioner on the 19th July 1927. On the 12th September 1927 the case was transferred by the Additional Chief Presidency Magistrate to the 4th Court, that is to say, to the Court of Mr. H.K De, Presidency Magistrate. That learned Magistrate thereafter proceeded to try a co-accused of the Petitioner who had also been sent up for trial on the same police challan and discharged him under sec. 253, Cr. P.C On the 15th November 1927 the trial of the Petitioner commenced before Mr. H.K De, the offence specified in the summary form prescribed by sec. 370, Cr. P.C, being “criminal breach of trust as a servant in respect of Rs. 3,651-5-3 p. realised on punjahs entrusted to him by Ganpat Ray Chaudry (the manager of Messrs Sew Narain Golap Roy), sec. 408, I.P.C” Charges in respect of 3 items, viz., Rs. 257-8-3 p., Rs. 1,855-0-3 p. and Rs. 178-11-3 p. were framed against the Petitioner as being the items in respect of which criminal breach of trust was committed by the Petitioner on the 6th June 1927 and the Petitioner was convicted on these charges and was sentenced to undergo rigorous imprisonment for 3 months. The trial thus concluded before Mr. H.K De on the 8th February 1928.
On the 14th April 1928 another challan was submitted by the police to the Additional Chief Presidency Magistrate stating that the Petitioner had committed criminal breach of trust of three sums of money, viz., 700, 100 and 100, on the 6th June 1927, 25th May 1927 and 24th May 1927, respectively, the other particulars being the same as in the previous challan. It was stated in the challan that the Petitioner was undergoing the sentence passed on him by Mr. H.K De. The Additional Chief Presidency Magistrate issued order for the Petitioner being brought up for trial. The Petitioner put in a petition objecting to the trial on the ground that these three items were included in the gross sum of Rs. 3,651-5-3 p., and maintained that he had already been tried for the whole offence that he had committed, and so under sec. 403, Cr. P.C could not be tried again. The Additional Chief Presidency Magistrate disallowed the objection, proceeded with the trial and ultimately convicted the Petitioner in respect of the said three items and sentenced him to undergo rigorous imprisonment for 3 months.
The Petitioner then moved this Court and obtained this Rule. The grounds of the Rule are that sec. 403, Cr. P.C was a bar to the second trial of the Petitioner, or, at any rate, on the principle underlying that section, no such second trial should have been held. It should be noted here that it is not disputed on behalf of the Crown that the three items in respect of which the second trial was held are included in the gross sum of Rs. 3,651-5-3 p., though they are not covered by any of the three items which formed the subject-matter of the charges framed in the first trial.
At the outset I may observe that I do not understand how the police could have submitted a second challan when on the first one, which included all the items of the second challan in the gross sum that was mentioned therein, cognisance of the entire offence had already been taken by the Magistrate. It is true that they might have moved the Magistrate for a second or a further trial in respect of some offence or offences which had not yet been tried but such application would lie to Mr. H.K De, to whom the whole case on the first challan, had been made over, and not to the Additional Chief Presidency Magistrate. It is well-settled that in circumstances such as that it was Mr. H.K De alone, so long as the case had not been re-transferred from his file, who was competent to deal with any such application. Where a Magistrate has once become properly seised of a case by transfer or otherwise he is seised of the whole matter and a superior Magistrate cannot take action except under Chap. XXXII or by withdrawal of the case to his own Court [Radhaballav v. Benode , Moul v. Mahabir (2), Golapdi v. Queen-Empress (3) and Ajab Lal v. Emperor (4)]. Were this a ground on which the Rule had been issued I should have felt no difficulty in making it absolute and quashing the conviction of the Petitioner on the ground alone. To turn now to the ground of this Rule.
Now, there is a divergence of judicial opinion on the question whether after a trial in respect of a gross sum in respect of which breach of trust was alleged to have been committed between two specified dates, a second trial in respect of an offence alleged to have been committed on an intermediate elate but not included in the gross sum is permissible. In In re Appadurai Ayyar , the Madras High Court held that under such circumstances the charge in the first trial should be taken to have included all the items covered by the period and the same view was taken by Suhrawardy, J., in Nagendra Nath Bose v. Emperor . A contrary view was taken by the Bombay High Court in the case of Emperor v. Kashinath (7). This contrary view also has been taken by Newbould and Greaves, JJ., in the aforesaid case of Nagendra Nath v. Emperor , in which, however, Newbould, J., pointed out 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. These cases have but a remote bearing on the present case in which it is not the fact that the former trial was for a gross sum, and so I am not called upon to express my own view on this matter.
The present case is one in which the prosecution knew perfectly well what was the gross sum in respect of which the Petitioner had committed criminal breach of trust. It was a sum of Rs. 3651-5-3 p. They could have, if they liked, proceeded against the Petitioner in respect of this gross amount under sec. 222(2), Cr. P.C Instead of doing so they elected to proceed on three items and got the Petitioner convicted. Then they picked up three other items and got the accused tried a second time. Though sec. 403, Cr. P.C may not strictly apply in its terms to a case like the present, still there is abundant authority for the view that a second trial in the circumstances such as these ought not to have been allowed to be held. Where six documents were alleged to be fabricated at one and the same time, and at first the accused was tried for fabricating three of the documents and acquitted, a second trial for fabricating the other three documents, though not barred, was set aside, it being held that it was not desirable that a second trial should take place as the fabricating of all the documents was treated in the first trial as one offence [Emperor v. Inamullah (8)]. The principle underlying sec. 403 has been often extended to cases not falling strictly within the letter of that section [e.g, Emperor v. Jhabbor Mull (9), Emperor v. Bishnu Das (10) and Jaliram v. Raj Kumar (11)]. Again in Surya Kanta v. King-Emperor* this Court quashed a trial under the following circumstances—S was convicted by Court of Sessions on a charge under secs. 408 and 477A, I.P.C in respect of an item of Rs. 2 when he could have been but was not tried on a similar charge for a further sum of Rs. 7 at the same trial. This Court, on appeal, set aside his conviction and directed that he should not be re-tried—meaning, on the charge in respect of Rs. 2. Thereafter the prosecution wanted to proceed against S. in respect of the other sum of Rs. 7. This Court stopped that trial.
I am of opinion that if the Petitioner had moved this Court for stopping his second trial he would have found no difficulty in getting an order in his favour. But after the trial is over it is not possible to hold on this ground alone that the conviction is illegal. The fact, however, remains that he did move the Magistrate for the purpose but failed.
I shall therefore make the Rule absolute to this extent that it will be ordered that the conviction will be upheld but the sentence should be reduced to the minimum that I can think of, namely, a day's rigorous imprisonment which he must have already served out.
Suhrawardy, J.:— I entirely agree. As the law stands, it is difficult to hold that the conviction is illegal. If a person commits breach of trust of or misappropriates different sum of money, he commits so many offences. But it is not desirable that he should be tried as many times when he could have been tried for all of them at one trial. As for the sentence which my learned brother proposes to pass, it is usual in meeting out sentence at the first trial to take into consideration the gross amount misappropriated.
P.C