Bookmark
PDF
Share
CaseIQ

Ramkishoon Pershad v. Emperor Opposite Party.

Patna High Court

Nov 20, 1933

Judgment

Subsequent
References

CaseIQ

Important Paras

Please sign up to view Important Paras.

Smart Summary (Beta)

Factual and Procedural Background

The petitioner challenged convictions recorded against him under Sections 409 and 477A of the Indian Penal Code in two separate criminal cases, the appeals from which were dismissed by a single judgment. In the first case the petitioner was sentenced to eighteen months' rigorous imprisonment and a fine of Rs. 200 under Section 409 and to eighteen months' rigorous imprisonment under Section 477A, the sentences to run concurrently. The first case concerned realization of municipal tax from Satyendra Nath Banarji; the charge under Section 409 specifically identified three municipal receipts and alleged criminal breach of trust in relation to those receipts within a stated period (20th October 1931 to 31st March 1932).

In the second case the petitioner was sentenced to two years' rigorous imprisonment and a fine of Rs. 200 under Section 409 and to two years' rigorous imprisonment under Section 477A, the sentences again to run concurrently. That trial related to three similar realizations between 29th September 1928 and 28th March 1929 from Zamiruddin; the Section 409 charge similarly enumerated three receipts and dates.

The only question presented to the court was whether the petitioner had been tried according to law — essentially whether the framing of the charges and the joinder of counts were legally valid.

Legal Issues Presented

Whether the charges under Section 409 (criminal breach of trust) and the corresponding charges under Section 477A (falsification of accounts) — which in substance involved three alleged acts each — were properly joined and tried together, or whether the framing amounted to an improper misjoinder rendering the trial invalid.
Whether a charge under Section 409 that enumerates multiple items (receipts) can properly be treated as a charge in respect of a single "gross" or "lump" sum under the provisions of Section 222(2) of the Criminal Procedure Code (CPC), enabling trial of related offences under Sections 234 and 235 of the CPC.
Whether Sections 234 and 235 of the CPC are mutually exclusive (such that one would preclude the other) or whether they can operate cumulatively to permit joinder and joint trial of multiple offences and connected offences in a single proceeding.

Arguments of the Parties

Petitioner's Arguments

The petitioner relied on the decision in Kasi Viswanathan v. Emperor and subsequent authorities that follow it, arguing that a trial that effectively amounted to three charges under Section 409 and three charges under Section 477A was not justified by the Code and was wholly invalid (i.e., a misjoinder/multiplicity objection to the joint trial of those offences).
The petitioner attempted to distinguish precedents that permitted a single gross-sum charge by contending that, unlike those cases, the present charges under Section 409 were not framed in respect of a gross lump sum and therefore could not be treated as one offence under the CPC provisions cited.

Respondent's (Crown's) Arguments

The Crown relied upon Gajadhar Lal v. Emperor and Michael John v. King-Emperor (Michael John v. Emperor as described in the opinion) to argue that the impugned charges were properly framed and that a single charge in respect of a gross sum is permissible even where constituent items are enumerated.
The Government Advocate contended that the Section 409 charge in each case should be read as a charge in respect of a gross sum — the aggregate of the three enumerated receipts — described as "the said property", and thus correctly framed under Section 222(2) of the CPC.
As an alternative, it was argued that even if the Section 409 charge had to be taken as three separate offences, the trial would still be valid under the Code because Sections 234 and 235 of the CPC can operate together: Section 234 permits trial of up to three offences of the same kind committed within twelve months at one trial, and Section 235 permits trial of offences that are connected by the same transaction along with one of those offences.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kasi Viswanathan v. Emperor	Authority relied upon to contend that a trial on what is substantially multiple charges (multiple instances of S.409 and S.477A) is not justified by the Code and is invalid.	The court noted this authority was relied on by the petitioner but distinguished or declined to follow it in light of later decisions (notably Michael John) and on the facts of these charges.
Gajadhar Lal v. Emperor	Support for treating a charge under S.408/S.409 as in respect of a gross/lump sum, permitting related falsification charges to be tried together under provisions of the CPC.	The court treated Gajadhar Lal as a binding authority (approved in Michael John) and applied its principle to hold that the Section 409 charge here could be a single charge as to a gross sum, so the plea of misjoinder failed.
Michael John v. King-Emperor (Michael John v. Emperor)	Approved Gajadhar Lal and held that a single charge in respect of a gross sum can be valid; did not follow Raman Bechary Das which relied on Kasi Viswanathan.	The court regarded Michael John as binding, concluded the magistrate intended to frame the charge in the manner held valid in Michael John, and applied its reasoning to uphold the framing of the charge here.
Raman Bechary Das v. Emperor	A decision based upon Kasi Viswanathan (implicitly supporting the view that multiple charges could be invalid).	The court observed that Michael John did not follow Raman Bechary Das; Raman Bechary Das therefore did not govern the present case.
Emperor v. Datto Hanmant	Principle that enumerating items of defalcation in a charge does not necessarily affect the validity of a charge framed in respect of a gross sum.	The court cited this authority to support the proposition that listing individual items does not invalidate a gross-sum charge.
Rahim Baksha v. Emperor	Same principle as above: enumeration of items does not affect the validity of a gross-sum criminal breach of trust charge.	The court relied on this precedent alongside Datto Hanmant to reinforce that the framing here remained valid despite enumeration of receipts.
Emperor v. Prem Narain	Held that where multiple sums and dates fall within less than one year, the charge may be treated as a single offence under Section 222(2) / S.234, avoiding misjoinder.	The court cited Prem Narain as reaching the same conclusion on analogous facts and used it to support the view that the present charges constituted a single charge as to a gross sum.
Emperor v. Jiban Krishan	Illustration of a trial on multiple counts (six counts: three embezzlements under S.408 and three falsifications under S.477A) with convictions on each count.	The court referenced this case to show historical treatment of multiple counts tried together and to support the argument that joint trials of related offences have precedent.
Sheo Saran Lal v. Emperor	Contains judicial language to the effect (per Tudball, J.) that Sections 234 and 235 might be mutually exclusive.	The court explicitly rejected the view that Sections 234 and 235 are mutually exclusive, considering the suggestion incorrect and preferring a cumulative reading of those provisions.

Court's Reasoning and Analysis

The court's analysis proceeded in two linked stages.

Binding authorities and the nature of the Section 409 charge:
- The court treated Gajadhar Lal and Michael John as binding and correctly decided authorities. Michael John had approved Gajadhar Lal and refused to follow Raman Bechary Das which relied on Kasi Viswanathan.
- The central question was whether the Section 409 charges before the court were properly read as a single charge in respect of a gross sum (a "lump sum" within the meaning of Section 222(2) CPC) or whether they amounted to multiple discrete charges (one for each receipt/date) such that joinder/multiplicity invalidated the trial.
- The court found it was a reasonable inference from the charge that the magistrate intended the framing that had been held valid in Michael John — i.e., a single charge in respect of the aggregate (gross) sum even though the component receipts were enumerated. The court emphasized that enumeration of items does not by itself vitiate the validity of a gross-sum charge, citing Emperor v. Datto Hanmant and Rahim Baksha v. Emperor.
- Applying Section 222(2) CPC, the court concluded that in each case the Section 409 charge was a charge of criminal breach of trust by a servant in respect of a gross sum composed of the three items specified (collections from one person within a period of less than one year), and thereby constituted a single charge for the purposes of S.234 and S.235. On that basis Gajadhar Lal and Michael John applied and the petitioner's plea of misjoinder failed.
Interaction of Sections 234 and 235 (and the alternative submission):
- The Government Advocate further argued that even if the Section 409 charge were to be treated as three separate offences, the trials would nonetheless be valid by virtue of the Code because Sections 234 and 235 should be read cumulatively rather than as mutually exclusive.
- The court rejected the notion that S.234 and S.235 are mutually exclusive (a view attributed in part to Sheo Saran Lal). The opinion noted that S.233 requires separate charges for distinct offences except in the cases mentioned in Ss.234, 235, 236 and 239, and found no reason to treat these exceptions as mutually exclusive.
- The court explained the practical and legislative rationale: S.234 permits the trial of up to three offences of the same kind committed within twelve months at one trial; S.235 permits offences that are part of the same transaction to be tried along with one of those offences; read together, they avoid multiplicity of trials and permit efficient presentation of overlapping evidence without prejudice to the accused. The court considered that in a proper case the provisions are cumulative in effect and therefore the joinder in the present prosecutions did not produce an invalid trial.
Conclusion of reasoning:
- Having found the Section 409 charges to be properly framed as single gross-sum charges (or, alternatively, that even if they were separate the joinder would be permissible under Ss.234 and 235), the court concluded there was no misjoinder of charges and no legal invalidity in the trials that resulted in conviction.

Holding and Implications

THE RULE IS DISCHARGED.

Implications and immediate consequences:

The court held that the Section 409 charges in each case were correctly framed as charges in respect of a gross sum (in accordance with Section 222(2) CPC) despite enumeration of component receipts, and therefore decisions in Gajadhar Lal and Michael John applied; the petitioner's plea of misjoinder of charges failed.
In the alternative, the court held that Sections 234 and 235 of the Criminal Procedure Code are not mutually exclusive and can operate cumulatively so as to permit joint trial of the offences in question; accordingly, even if the Section 409 charges were treated as multiple offences, the joinder and joint trial were valid.
The direct effect on the parties is that the petition challenging the convictions on the basis of misjoinder/multiplicity was dismissed and the rule was discharged; the convictions and sentences were thereby upheld as not vitiated by the accused's procedural complaint.
The opinion grounds its decision on existing authorities (as identified above) and statutory construction; the judgment does not purport to announce a novel legal principle beyond its application of those authorities and the interpretation of Ss. 222(2), 233, 234 and 235 of the CPC as described in the reasoning.

K.S

Rule discharged.

Show all summary ...

1. The petitioner has obtained the present rule for consideration of convictions recorded against him under Ss. 409 and 477A of the I.P.C in two separate cases, the appeals from which were dismissed by a single judgment. In one case he was sentenced to eighteen months' rigorous imprisonment and a fine of Rs. 200 under S. 409 and to eighteen months' rigorous imprisonment under S. 477A, the sentences of imprisonment to run concurrently. In the other cases he was sentenced under S. 409 to two years' rigorous imprisonment and a fine of Rs. 200 and under S. 477A to two years' rigorous imprisonment, the sentences of imprisonment again to run concurrently. The first case related to realisation of municipal tax from Satyendra Nath Banarji. The charge under S. 409 was as follows:

“That yon between 19th October 1931 and 1st April 1932, at Patna City, being a public servant in the employment of the Patna City Municipality and in such capacity entrusted with Municipal property i.e, collection of taxes, to wit, by Municipal Receipt No. 38960, dated 20th October 1931 for Rs. 139-7-0, Ex. 6, No. 55091, dated 6th January 1932 for Ea. 60, Ex. 3 and No. 81273, dated 31st March 1932 for Rs. 60, Ex. 2, committed criminal breach of trust with respect to the said property, and thereby committed an offence under S. 409, I.P.C, and within my cognizance.”

2. The charges under S. 477A relates; to the respective fraudulent false entries in the daily collection registers. The second trial was concerned with three similar realizations between 29th September 1928, and 28th March 1929, from Zamiruddin, and the charges were on the same lines except that in the charge under S. 409 the words

“to wit, by Municipal Receipt No. 10607, dated 20th September 1928 for Rs. 65-3-0, and Receipt No. 38201, dated 20th February 1923, for Rupees 32-9-6 and Receipt No. 46282, dated 28th March 1929, for Rs. 32-9-6”

3. Are within brackets.

4. The only question which arises is whether the petitioner has been tried according to law. It is urged on the authority of Kasi Viswanathan v. Emperor (1) and other decisions, which follow it, that a trial on what is substantially three charges of offences under S. 409 and three charges offence under S. 477A is not justified by the Code and is wholly invalid. In reply Mr. Akbari relied upon the decisions in Gajadhar Lal v. Emperor (2) and Michael John v. Emperor (3) as adequately meeting this contention on behalf of the petitioner. Now what was decided in the first of charged under S. 408 of the I.P.C with criminal breach of trust committed in one year in respect of a lump sum of money, the court is competent, by virtue of provisions of Sections 234 and 235 of the CR PC these cases was that where a person is cedure, to try with this charge three charges for an offence under S. 477A of the Indian Penal Code if committed within the period of one year and forming part of the same transaction as the offence under S. 408. In Michael John v. King-Emperor* the decision in Gajadhar Lal v. Emperor was approved while the decision in Raman Bechary Das v. Emperor (4) based upon Kasi Viswanathan v. Emperor was not followed.

5. These two cases are binding upon us and, with respect, we hold that they were rightly decide-ed. The learned Advocate for the petitioner does not contend that they were not, but he would distinguish them on the ground that whereas in each of them the charge under S. 409 was in respect of a lump sum (or to use the expression in Section 222(2) of the CPC a gross sum), it is otherwise within the charges under S. 409 set out above which, he contends, cannot be said to be in respect of a gross sum. The learned Government Advocate who appeared later, on behalf of the crown, contended in the first place the charge under S. 409 is in respect of a gross sum, being the aggregate realization under the three receipts enumerated which is also mentioned as “the said property”.

6. It is a reasonable inference from the charge itself that in each case the Magistrate intended that trial should be on the line held to be valid in the case of Michael John v. King-Emperor* It does not of course, affect the validity of a charge of criminal breach of trust in respect of a gross sum that the items of defalcation are also enumerated: Emperor v. Datto Hanmant (5) and Rahim Baksha v. Emperor (6). In our judgment, the charge has been correctly framed in accordance with the provisions of Section 222(2) of the CPC and is a charge of criminal breach of trust by a servant of a gross sum consisting of the three items of “collection of taxes” from one person (in one case from Satyendra Nath Banerjee and in the other cases from Zamiruddin) within a stated period of less than one year, templated as a single item of “municipal property” entrusted to the accused. The same view has been taken by Mears, C.J and King, J., in Emperor v. Prem Narain (7). In that case one charge was framed in which four sums of money said to have been embezzled were specified and three dates were also specified as being the dates of the alleged embezzlements, two of the four items being alleged to have embezzled on one of the dates. The time included between the first and the last of the three dates was less-than one year. It was held that there was in fact only one charge framed and as that charge, altogether it did not set out the total of the money embezzled, did specify all the items and the dates upon which the sums were alleged to have been embezzled and as the time included between the first and the last of such dates was less than two months (and so less than one year), the charge was correctly drawn up in accordance with the provisions of S. 222(2) and must be deemed to be a charge of one offence within the meaning of S. 234, so that it followed that there was no misjoinder of charges since the accused was on his trial for only one offence. The charge under S. 409 against the petitioner thus being in each case a single charge as to a gross sum the decisions in Gajadhar Lal v. Emperor and Michael John v. Emperor apply and the plea of misjoinder of charges fails.

7. The learned Government Advocate further contends that assuming that the charge under S. 409, as framed, must be taken to constitute three charges of as many offences nevertheless the trial is valid under the Code of Criminal Procedure. In the case of August 1902 mentioned by Carnduff, J. in Emperor v. Jiban Krishan (8) it appears that in the trial

“on six counts with three separate embezzlements under S. 408, Penal Code, and with three corresponding falsifications under S. 477-A”

8. There was a conviction in the Calcutta High Court on each count. The decision on which the Advocate for the petitioner relies proceeds on the view that S. 234 and S. 235 are mutually exclusive, to use the expression of Tudball, J. in Sheo Saran Lal v. Emperor (9). Now S. 233 provides that for every distinct offence of which any person, is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in Ss. 234, 235, 236 and 239. There is no apparent reason for holding that these four exceptional cases are mutually exclusive. Certainly there is no more reason for holding that Ss. 234 and 235 are mutually exclusive that one or other of these provisions and either S. 236 or S. 239 are mutually exclusive or that S. 236 and S. 239 are so. In our view it is far more consonant with reason and the probable wishes of the legislature that in a proper case the trial of three offences under S. 409 along with the falsification of accounts with which the subject-matter of each charge is linked, should be contemplated than that it should be barred. It can be predicated that in the present case there was no prejudice to the accused and indeed it is not easily dismisseble how prejudice can arise in such a case. S. 234 permits three offences of the same kind committed within the space of twelve months from the first to the last to be tried at one trial. A valid trial on, charges as to three offences being thus constituted, S. 235 comes in to provide that all offences committed by the same person in the series of acts so connected together as to form the same transitions with any one of those three offences, can be tried with that offence. In principle multiplicity of trials is to be avoided. Again in order to establish one or more of the charges triable at one trial under S. 234 it is frequently essential or expedient to produce all the evidence necessary and sufficient to establish the other offences referred to in S. 235(1). There being ordirily no likelihood that the accused would in the circumstances, be embarrassed in his defence, it is hard to believe that this evidence is only to have effect as to one of these offences committed in the same transaction: One would expect the legislature at least to permit a joint trial of all the offences in the series forming the same transaction in spite of the fact that one of the offences of the series is by another provision triable along with two other offences of the same kind. We consider that it has done so and we can see no reason why Ss. 234 and 235 are not to be regarded as cumulative in their effect an a proper case.

9. In our view, even if the first submission of the learned Government Advocate had failed the trials at which the petitioner was convicted were validity constituted, there being no misjoinder of charges.

10. We accordingly discharge the rule.

K.S

11. Rue discharged.