Patna High Court
Farzand Ali vs Emperor on 6 May, 1926
Equivalent citations: 96IND. CAS.221, AIR 1926 PATNA 347
JUDGMENT John Bucknill, J.
1. This was an application in Criminal Revisional Jurisdiction. The applicant was charged with offences punishable under the provisions of Section 409 (criminal breach of trust by a public servant) ands 420 (cheating and dishonestly inducing delivery of property) of the Indian Penal Code. He was tried before a First Class Magistrate of Kishunganj. He was convicted under both the sections. He was sentenced under Section 40D to two months' rigorous imprisonment and a fine of Rs. 25 and in default of payment thereof, to 15 days' further rigorous imprisonment. Under Section 420 he was sentenced to one month's rigorous imprisonment and a fine of Rs. 25 and similarly, in default of payment thereof, to 15 days' further rigorous imprisonment. The applicant appealed to the Sessions Judge of Purnea who set aside the conviction and sentence under Section 409 but upheld the conviction and sentence under Section 420. The applicant has now come up in revision to this Court.
2. The only point which the learned Counsel has put forward is with regard to the form of charge. The charge reads-
That you in the month of September deceitfully induced Mejaj Ali and Mehtar Ali to pay to you Re. 1 each and Bhattri Das to pay to you 4 annas in excess of the legitimate chaukidari tax due for 1332 Fasli and thereby committed an offence punishable under Section 420 of the Indian Penal Code.
3. The charge is certainly not a model one; in the first place, it would have been more proper to have put the exact dates upon which the offences were alleged to have been committed. But I do not think that it is possible for me to set aside the conviction on the ground that no closer date than the month of September is given in the charge, unless it was clearly shown that the omission to give the exact date has materially prejudiced the applicant at his trial. No such proof is forthcoming and no allegation even is made to that effect.
4. The next point which is put forward is that three distinct offences have been included in this one charge and that they all ought to be tried separately and that these three offences should have formed the subject of separate trials which should have been tried separately. I have commented upon the somewhat slipshod manner in which the charge was drawn up; but, in view of Section 234 of the Cr.P.C., I cannot see how it can seriously be suggested that the inclusion of these three offences in one charge can be regarded as illegal. Under Section 233 of the Cr.P.C. it is true that for every distinct offence of which any person is accused there shall be a separate charge, and that every such charge shall be tried separately, but the section goes on to make certain exceptions, the first of which is the exception mentioned in Section 231. Now, Section 234, Sub-section (1) reads-
When a person is accused of more offences than one of the same kind committed within the space of 12 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.
5. In the present charge it is obvious that here we have three offences of the same kind alleged to have been committed not only within one year but within one month. The learned Counsel has referred to a case, Asghar All Biswas v. Emperor 20 Ind. Cas. 609 : 40 C. 816 : 17 C.W.N. 827 : 14 Cr.L.J. 449 in which a Bench of the Calcutta High Court held that where a charge, under Section 409 of the Indian Penal Code, of criminal breach of trust, alleged two separate offences--one in respect of a sum of 4 annas 6 pies collected from A between certain dates in one year and a sum of 6 annas collected from B between other dates in the same year--such a charge was bad for misjoinder and a trial held on such a double charge was illegal. It appears from the report that no one appeared on behalf of the Crown at the hearing of the application. It seems to have been argued on behalf of the applicant that the two acts of misappropriation were distinct, that there were two distinct offences and that under Section 233 of the Code they could not be included in one charge. The case of Subrahmania Ayyar v. King-Emptor 25 M. 61 : 5 C.W.N. 866 : 11 M.L.J. 233 : 3 Bom. L.R. 510 : 28 I.A. 287 : 8 Sar. P.C.J. 160 : 3 Weir 271 (P.C.) was "referred to as an authority for that proposition. But in that case the appellant was tried on an indictment in which he was charged with no less than 41 acts extending over a period of three years. The charge was patently illegal and was so held to be by their Lordships of the Privy Council. I may mention that in the first count of that indictment there were no less than four persons in respect of whom Subrahmania Ayyar was alleged to have committed criminal breach of trust and that in that count, also, no less than 8 specific acts extending over a period from 1896 to' 1898 were mentioned. I think that it is obvious that such a count was hopelessly illegal; but I cannot see anywhere in that case any ground for thinking that it was an authority which affected the case which was tried in the Calcutta High Court to which I have already referred.' In the Calcutta High Court no reference seems to have been made to Section 234 of the Cr.P.C., and Harrington and Coxe, JJ., seem to have thought that joinder of these two offences against different persons in one charge was an illegality. The law on that particular point was altered by an amendment in 1923 by the insertion of the words "whether in respect of the same person or not." It does not seem to have been suggested to their Lordships that the offences were of the same kind. I am inclined to think, with great deference, that, at any rate, the alteration of the law renders the decision in Asghar Ali Biswas v. Emperor 20 Ind. Cas. 609 : 40 C. 816 : 17 C.W.N. 827 : 14 Cr.L.J. 449 one which would not be followed by this Court. And, even, judging from the report, it seems that the law upon the position was not fully placed before their Lordships and no appearance was entered in the application on behalf of the Grown.
6. I, therefore, am of opinion that in this case the charge as framed (although open to some objection) is not illegal. Had it been shown to me that the form of the charge had embarrassed or adversely affected the applicant in connection with his trial, I should have had no hesitation in setting the conviction aside; but no such proof has been brought before me and I can see no ground for thinking that the charge is intrinsically illegal.
7. Then, as to the question of sentence, it is suggested that the sentence is too severe. With the Sessions Judge, however, I am inclined to agree that, taking the circumstances into consideration, the applicant has been somewhat leniently dealt with. He succeeded in his appeal in avoiding the longer sentence of two months to which by the trial Court he had been sentenced; but I do not think that, in view of the fact that he was a public servant and that he was extorting money in his position as such, it can be said that the sentence which has been passed upon him is in any way too severe.
8. The application is, therefore, rejected.