Hugh Francis Bellgard And Anr. v. The Emperor

The Appellants before us were tried by the Assistant Sessions Judge of Rajshahi and a common jury. Nine charges were framed against each of the two Appellants. Against the Appellant Bellgard were framed three separate charges of cheating punishable under sec. 420 of the Indian Penal Code, three separate charges of forgery punishable under sec. 467 of the Indian Penal Code, and three separate charges of falsification of accounts punishable under sec. 477A of the Indian Penal Code. Against the Appellant Missir were framed three separate charges of cheating punishable under sec. 420 of the Indian Penal Code, three separate charges of abetment of forgery punishable under sec. 467, read with sec. 109 of the Indian Penal Code, and three separate charges of abetment of falsification of accounts punishable under sec. 477A of the Indian Penal Code.

The jury returned a unanimous verdict of not guilty in respect of the three charges of forgery against Bellgard and in respect of the three charges of abetment of forgery against Missir; but they returned a majority verdict—3 against 2—in respect of the remaining charges. The majority of the jury found Bellgard guilty on all three charges of cheating and on all three charges of falsification of accounts: they also found Missir guilty not of cheating but of abetment of cheating on all three counts, and also on all three charges of abetment of falsification of accounts. The learned Judge accepted the majority verdict, acquitted Bellgard of the charges of forgery and Missir of the charges of abetment of forgery. The learned Judge convicted Bellgard on the remaining six charges, and sentenced him on each charge to undergo four years' and six months' rigorous imprisonment.

The learned Judge also convicted Missir on the six charges of which the jury had found him guilty and sentenced him on each charge to undergo four years' and six months' rigorous imprisonment. All the sentences on each of the two accused were to run concurrently.

Against these convictions and sentences the present appeal has been preferred.

The principal ground of appeal is that there was a misjoinder of charges and that the trial was held in contravention of the provisions of sec. 233 of the Code of Criminal Procedure and that consequently the convictions and sentences (and also, incidentally, the acquittals on the charges of forgery and abetment of forgery) were illegal.

To appreciate the argument it is necessary to give a brief outline of the prosecution case. According to the prosecution, Appellant Bellgard was an Assistant Permanent Way Inspector on the Abdulpur Chapai Nawabganj Section of the Eastern Bengal Railway throughout the period with which we are concerned, and it was his duty to maintain the permanent way in a proper state of repair. He had under his control a number of gangs of workmen, each consisting of a mate and 8 or 10 Khalasis. During the rainy season of 1938 there were heavy rains and floods in the area through which the Abdulpur-Chapai Nawabganj Section of the Railway runs. Water rose above the level of the permanent way: The Sitlai bridge was threatened and ultimately on 27th August, 1938, collapsed on account of the floods.

To meet this emergency Bellgard applied to his superiors for sanction to employ additional temporary gangs and sanction was given. When sanction is given for the employment of temporary additional workmen, the procedure adopted on the Eastern Bengal Railway is as follows: The Assistant Permanent way Inspector, or his subordinates, ascertain the names and addresses of persons in the locality who are willing to work in temporary gangs. These persons are divided into gangs and one of their number is chosen as mate for each of the gangs. A muster sheet is drawn up for each such gang and in it is noted the name of the mate and each of the Khalasis. This muster sheet is made over to the mate, and it is the duty of the latter to mark the attendance of each member of the gang present and working on each date.

On a fixed date in each month, the muster sheets are made over to the Assistant Permanent Way Inspector and by him forwarded to the accounts office where the pay sheets are drawn up from the muster sheets.

Then a pay clerk is sent out from the Head Office with the pay sheets and the pay of the gangs. The pay clerk travels along the line until he meets a gang at work. Then he stops and pays the gang. The rules require that there shall be a witnessing officer present at the time of such payment. The names of the workmen in the gang are called out, the man steps forward and gives his thumb impression on the pay sheet and the impression is initialled by the witnessing officer. The man is then paid by the pay clerk. It may happen that several gangs are paid at the same place, as the date on which payment is to be made is known before hand and the gangs collect at convenient places. When all present have been paid, the pay clerk goes on until he meets more gangs.

As stated above, the employment of temporary additional gangs was sanctioned to deal with the situation arising out of the unusually heavy floods. These gangs were sanctioned for a month at a time. Each month, a new application for sanction was made and a new sanction granted. In this way additional temporary gangs were sanctioned for the Abdulpur-Chapai Nawabganj Section in the months of July, August, September, October, November and December, 1938.

The work, for the performance of which these gangs were sanctioned, was performed to the entire satisfaction of the superior officers of the Engineering Department of the Railway.

But, when the pay sheets were examined in the accounts office of the Railway, it was discovered that the same thumb impression sometimes occurred against more than one name in the same pay sheet, and sometimes occurred against different names in different pay sheets. A report to this effect was submitted by the accounts Department, and as a result an enquiry was started.

The Railway Administration came to the conclusion that no temporary gangs had in fact been employed in the Abdulpur Chapai Nawabganj Section, and that Appellant Bellgard with the assistance of Appellant Missir had falsely represented to his superiors that the gangs had been employed, had made false entries in the muster sheets to shew as present on each day, men who did not actually work in the gangs and further had induced men to come forward and claim the pay of the persons named in the pay sheets, knowing that the men so claiming the pay were not the persons whose names were read out. In this way it is said that Bellgard cheated the Railway administration by forging muster sheets and pay sheets, and falsifying the same documents and that Missir aided and abetted him in these crimes.

The charges drawn up against Bellgard were as follows:—

1. “That you, H.F Bellgard, between the 1st day of September 1938 and 23rd day of September 1938 between Rajshahi and Nawabganj Railway Stations within Iswardi G.R.P.S cheated E.B Railway administration by dishonestly and fraudulently induoing the said administration by presentation of fraudulent and forged muster roll and pay sheets of temporary gangs of A.N Section within the Engineering District of Paksey for this month to part with the amount of money to wit, Rs. 1694/4/0 and deliver the same to you, by wrongful disbursement, which act caused damage to the said Railway administration, and thereby committed an offence punishable under section 420 of the Indian Penal Code………….”

The second and third charges of cheating were in exactly the same terms except that in place of September, the word “October” occurred in the second charge and the word November in the third charge, and in place of Rs. 1,694-4-0, Rs. 2,248-4-0 occurred in the second charge, and Rs. 1,439-3-0 in the third charge.

The fourth charge against Bellgard was in these terms:

“That you on or about the month of the September 1938 at A.N Railway Section of the E.B Railway Engineering District Paksey, between Rajshahi and Nawabganj Railways Stations within Iswardi G.R.P.S forged certain documents purporting to be acquittance rolls to wit, Muster rolls and their counterparts which are pay sheets, with acquittance, for that month of temporary gangmen under the A.N Railway Section of the E.B Railway Engineering District Paksey with intent to cause damage to the Railway administration and to commit fraud and thereby committed an offence punishable under section 467 of the Indian Penal Code……….”

The fifth and sixth charges were in the same terms with the exception that “October” and “November” respectively were substituted for “September.”

The seventh charge against Bellgard read:—

“That you, on or about the month of September 1938 at A.N Railway Section of the E.B Railway Engineering District Faksey, between Rajshahi and Nawabganj Railway Stations within Iswardi G.R.P.S, being servant of E.B Railway administration, with intent to defraud the Bailway, falsified account papers to wit, Muster sheets, Pay sheets with acquittance, for that month, for temporary gangs of A.N Raiway Section of the E.B Railway which belonged to the Railway administration your employer, and thereby committed an offenoe punishable under section 477A of the Indian Penal Code…………”

The eighth and ninth charges were in the same terms except that “October” and “November” respectively were substituted for the word “September.” The charges against Appellant Missir were in similar terms, and do not require to be set out at length.

Mr. Carden Noad appearing for Appellant Bellgard has contended that the trial of these nine charges in one trial was contrary to the provisions of sec. 233 of the Code of Criminal Procedure.

Sec. 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 sections 234, 235, 236 and 239.”

Therefore unless the present case comes within the purview of Secs. 234, 235, 236 or 239 of the Code, the trial of all nine charges together was clearly illegal.

It is not suggested that sec. 236, Cr. P.C, has any application and this section need not therefore be considered.

Sec. 234 provides that

“(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three.

(2) Offences are of the same kind when they are punishable with the same amount of imprisonment under the same section of the Indian Penal Code or of any special or local law…………”

It is clear that under this section the joinder in one trial of the three charges under sec. 420, I.P.C, or the three charges under sec. 467, I.P.C, or the three charges under sec. 477A, I.P.C, was perfectly legal. But sec. 234, Cr. P.C, does not sanction the joinder in one trial of a charge under sec. 420 with a charge under sec. 467 or a charge under sec. 477A, I.P.C

Sec. 235 of the Code reads:—

“235(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence.

(2) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.

(3) If several acts of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts.

(4) Nothing contained in this section shall affect the Indian Penal Code, Section 71.”

On behalf of the Crown, it has been urged by the learned Advocate-General, first, that all the acts which are the subject-matter of the nine charges against Appellant Bellgard formed a series so connected together as to form the same transaction, and, second, that even if it be held that the facts did not form the same transaction, they formed three transactions of the same kind committed within the space of twelve months, and therefore by a combination of Secs. 234 and 235 of the Code of Criminal Procedure, it was permissible to charge the Appellant with, and try him in one trial, for all the offences arising out of those three transactions. We have therefore to consider first whether all the acts which form the subject-matter of the charges against Bellgard constitute a series of acts so connected together as to form the same transaction.

The meaning of the phrase “the same transaction” has been considered on several occasions by the Courts in India but no precise definition has been attempted. In most of the reported cases the construction of sec. 239 rather than sec. 235 was considered. In Emperor v. Datto Hanmant(1) it was held that

“a series of acts separated by intervals of time are not excluded, provided that those jointly tried have throughout been directed to one and the same objective. If the accused started together for the same goal, this suffices to justify the joint trial…”

and again,

“In this case it has apparently been found by the lower court that the accused were jointly in charge of the trust fund, one of the accused being the Karbari and the other cashier. The one could not act without the connivance of the other; and they both evidently carried through their object in concert. That they carried out their scheme by successive acts done at intervals, alternately taking the benefits, does not prevent the unity of the project constituting the series of acts one transaction………”

In the case of Maung Kaung Kyme v. Emperor(2) it was held that the joinder of several charges in respect of offences committed on two consecutive nights was not illegal, if the prosecution alleged a general conspiracy to do some illegal act, and if the two acts were done in furtherance of that consipiracy.

In the case of Shapurji Sorabji…(Original Accused No. 1), v. Emperor*(3) it was held that proximity of time, unity of space, unity or community of purpose or design are all factors to be taken into consideration in determining whether a number of acts do or do not form the same transaction, but that the most important factor is continuity of action.

In the case of Kashiram Jhunjhunwalla v. Emperor(4), Costello, J. observed:

“It is not easy or indeed possible to give an exact definition to the word ‘transaction’ but I think we may say that it means a group of facts so connected together as to involve certain ideas, namely, unity, continuity and connection. In order to determine whether a group of facts constitutes one transaction it is necessary to ascertain whether they are so connected together as to constitute a whole which can be properly described as a transaction.”

If we examine the present charges in the light of these observations and remember that the sanction for the temporary gangs had to be obtained afresh each month and that if it had not been for further floods and further disasters occurring after the first sanction had been obtained, there would have been no occasion for the second sanction, it is obvious that when the first false representation was made to the superior officers, the Appellants could not have had in contemplation a further false representation in the following month, and that when the second one was made, they could not have had the third in contemplation. In other words, the second and third offences of cheating could not have been contemplated when the first was embarked upon. The constitution of the gangs changed from month to month; the fabrication of the three sets of documents must have been undertaken separately; the three false representations must have been separate and distinct. In other words, there were three entirely separate transactions though the modus operandi was said to have been the same on each occasion. Unless therefore it was clearly alleged at the trial that the three transactions were carried out in furtherance of a general conspiracy to commit such offences, the joinder of all nine charges in one trial was not sanctioned by the provisions of sec. 235.

It is true that an application was made to the District Magistrate for sanction to the initiation of proceedings under sec. 120B of the Indian Penal Code. Such sanction was not however, obtained, largely owing to a mistake on the part of the District Magistrate; and no allegation of conspiracy was made during the course of the trial.

In the circumstances we are unable to hold that the prosecution attempted to make out a case that the three transactions were carried out in furtherance of a general conspiracy to cheat the Railway administration in that particular manner.

In dealing with this question, the learned Advocate-General drew our attention to certain observations in the judgment in the case of Ram Kishoon Prasad v. King-Emperor which suggest that Secs. 234 and 235 of the Code of Criminal Procedure are not mutually exclusive and that in a proper case the trial of three separate offences under sec. 409, I.P.C, together with offences under sec. 477A, I.P.C, for falsification of accounts with which the subject-matter of each charge under sec. 409, I.P.C, was linked, would be quite legal. In other words, that the joint effect of Secs. 234 and 235 of the Code of Criminal Procedure was to sanction the joinder of all charges arising out of three transactions of the same kind carried out within a twelve-month. If this interpretation is correct, the joinder of nine charges against Bellgard would be perfectly legal.

We are unable to agree with the view expressed by the learned Judges in the case of Ram Kishoon Prasad v. King-Emperor. The definition of “offence of the same kind “contained in sec. 234(2), C.P.C, suggests that only three charges under a particular section of the Code are contemplated by that section. The fact that provisions analogous to those contained in cls. (2) and (3) of sec. 235 do not find place in sec. 234 is also suggestive.

It seems to us reasonable to hold that the legislature in framing sec. 234, C.P.C, contemplated a joint trial for 3 separate offences only when the offences were essentially of a simple kind and did not require the framing of a multitude of different charges.

In our opinion therefore there is nothing in Secs. 234 and 235 to justify the joinder of all nine charges against Bellgard.

In this connection, it is necessary to remember that nine charges were also framed against Missir and that the joint trial of Bellgard and Missir, each on nine different charges, was sought to be justified under sec. 239(d), C.P.C

In the case of Babu Lal Choukhani v. The King-Emperor, their Lordships of the Privy Council had occasion to interpret sec. 239(d) and held that joint trial was justified under this section not by the fact that the offences were committed in the course of the same transaction but by the fact that an accusation was made in good faith that the offences were so committed. If the accusation was made in good faith, the fact that it subsequently transpired that the offences were not committed in the course of the same transaction did not render the trial illegal. The corollary to this proposition is that if no such accusation was made explicitly or implicitly—the mere fact that it subsequently appeared that the offences were committed in the course of the same transaction, would not render legal the joint trial.

In the present case, the committing Magistrate observed

“the transactions of three months—namely September, October and November—are distinct and a charge with respect to each month is a distinct offence. Under sec. 234, Cr. P.C, a person can be tried at one trial for three offences of the same kind committed within one year, and under sec. 239, Cr. P.C, persons concerned in the same transaction, whether abettor or principal, can be tried together. Under sec. 235, offenoes committed by the same person in the course of the same transaction can be tried jointly. The trials for each month's offenoes may be splitted up.”

The Sessions Judge (who however did not try the case) refused a prayer for spilitting up the case and remarked:

“Prima facia, the offences were committed in the course of the same transaction. Joint trial of them is therefore warranted by law.”

We are unable to find in the fact that the Sessions Judge made this observation, that there was an accusation made in the trial that all the offences were committed in the course of the same transaction. We are therefore of opinion that the trial was illegal and that the convictions and sentences must be set aside.

We desire to add that in the present case, even if we had held that there was no illegality, we should still have set aside the convictions and sentences on the ground that it was not desirable to try the accused in one trial for the offences regarding the pay of the gangs for three different months; and on the ground that the charges framed did not specify with sufficient clarity the nature of the offences alleged to have been committed; and on the ground that the accused were materially prejudiced in their defence by being called upon to meet charges of so general and allembracing a character.

Mr. Carden Noad has asked us to take into account the evidence recorded in the trial, and the fact that his client has been under suspension for two and a half years and has already suffered very considerably, and to direct that there shall not be a fresh trial on the same charges.

As we have held that there has not been a legal trial, we are not entitled to order that there shall not be a fresh trial unless we are prepared to quash the commitment under sec. 215, Cr. P.C No case for quashing the commitment has been made out.

We have had our attention drawn to some of the evidence recorded in the case, and it is evident that the offences, if any, committed by the Appellants, were not so serious as at first believed. The ??? authorities seem to have believed at first that no temporary gangs were employed and that the administration had been cheated of a sum exceeding Rs. 5,000. The evidence on record shews that some of the temporary gang-men undoubtedly worked during the period in question, even if they worked for shorter periods than those for which they drew pay.

The work for which they were sanctioned was properly carried out; there was no satisfactory proof that it was done by persons other than the temporary gangmen.

Prosecution evidence (e.g, that of Tusku P.W 88) shews that the mere fact that the same man gave his thumb impression against different names is not proof conclusive that there was any fraud.

In view of these facts and in consideration of the punishment already undergone by the Appellants, we desire to express our decided opinion that it is not in the interests of justice to re-try these Appellants on the same charges.

It is therefore ordered that the appeal be allowed and the convictions and sentences be set aside.

Let the Appellants be discharged from their bail. If in spite of our observations in the matter, the Crown decides to re-try the Appellants, the Appellants may be arrested anew.

P.C