1. It appears that on the hearing of this reference the learned Vakil who appeared for the prosecution stated to the Court that he was in a position to specify three acts of misappropriation by the accused which might properly be made the basis of a charge against him, and Mr. Justice Hill expressed his regret that, this being so, the trial should have been allowed to proceed to an abortive issue upon the charge as it then stood. New charges were framed under Section 409, giving particulars of three acts of alleged criminal breach of trust on the part of the accused. In addition to these an entirely new charge was added under Section 477A of the Indian Penal Code in the following terms, ante p. 561.
2. This charge is an obvious departure from the charge upon which the accused had been, after two lengthened trials, acquitted by the jury, and would appear to have been added with the object of avoiding the necessity of specifying in the indictment particulars of the items of official misconduct which the High Court considered it requisite that the prosecution should specify.
3. The accused again pleaded not guilty to the charges, and a lengthened investigation ensued, after which the jury unanimously acquitted the accused.
4. Again the Sessions Judge has for the third time felt it to be his duty to refer the case to the High Court for orders, being satisfied, as he says, that the accused committed an offence under Section 477 A of the Indian Penal Code. He considers that the accused was rightly acquitted, upon the other charges.
6. Counsel on behalf of the accused has before us raised two preliminary objections to the review of the case. In the first place he argues that the formulating by the Magistrate of an additional and distinct charge under Section 477A was not justified under the circumstances, and having regard to what occurred on the previous trials and on the references to the High Court, that the accused ought to have been tried under Section 409 of the Indian Penal Code alone. In the next place he contended that the charge as framed under Section 477A was defective as being an arraignment of the accused on general acts of falsification of accounts extending over a period of nearly two and a half years.
7. As regards the first point taken by Counsel for the accused we think that it is doubtful whether on the former reference the parties ever contemplated that under the order of the Court an entirely new charge might be framed against the accused, but looking at the terms of the order we cannot say that the Magistrate and Sessions Judge over-stepped the limit of their powers.
8. As to the second objection more serious considerations arise. In place of the charge of criminal breach of trust the accused is charged with a general falsification of his accounts for a period extending from May 1894 to October 1896. No particulars whatever of any falsification are specified, but the accused is put upon his trial on a vague and general allegation of falsification of his accounts during a period of nearly two years and a half. It would seem to us that this charge was in all probability framed with the object of relieving, if possible, the prosecution from the obligation which lay upon them in respect of the charges under Section 409 of proving specific acts of misappropriation. Has it done so? We think not. Every act of falsification of a book or account in our opinion would amount to an offence under the Code under Section 234 of the Code of Criminal Procedure. An accused can only be charged and tried at one trial for any number of offences of the same kind not exceeding three committed within the space of one year. The explanation appended to Section 477A does not purport to override this section. In the present case it does not appear what number of acts of falsification are complained of, but the Sessions Judge finds that false entries were systematically made by the accused for the period above referred to--a period of nearly two years and a half. The papers alleged to have been falsified consisted of single Lock Registers and monthly returns. The charge does not specify any particular single Lock Register or monthly return which was so falsified. The alteration in the law by Section 222(2) of the Code of 1898 does not apply to a charge under section 477a of the penal code. It applies only to criminal breach of trust or dishonest misappropriation of money.
9. It appears to us for the foregoing reasons that the charge formulated under Section 477A was irregular, if not absolutely illegal.
10. The Sessions Judge, as we have stated, finds that the charges under Section 409 are unsustainable. We are of opinion for the reasons above stated that the second objection advanced by Counsel for the accused is well founded, and we rule accordingly; and under all the circumstances, and having regard to the protracted nature of this prosecution, to the fact that the accused has suffered considerably from the admittedly untenable charges upon which he was originally tried, and to the fact that he has been in confinement for upwards of a year and a half while these abortive proceedings were being prosecuted, we think that in the ends of justice it is undesirable that further proceedings against the accused be taken, and we accordingly so direct; and we order that the accused be forthwith discharged from custody.