Kailash Prasad Varma vs Emperor

Atkinson, J.—The petitioner jointly with another was charged u/s 409 of the Indian Penal Code with criminal breach of trust by converting to his own use three, various sums of money on various dates within one year. The charge relates to the sums of Rs. 38-1-0 appropriated on the 6th Jully 1916, Rs. 100-4-0 on the 31st July 1916 land Rs. 140 12-0 on the 25th October 1916.

The accused is a subordinate in the Post Office at Samastipur and his duty was to de(sic) registration clerk, with money received in payment of V.P.P. orders. The Sub-Post Mister of this Office is a man called C.M. Bose. The Inspector paid a visit to this Post Office and discovered that certain misappropriations or criminal breaches of trust of public money had taken place; accordingly the petitioner Kailash Prasad Varma and C.M. Bose were jointly charged u/s 409, Indian Penal Code, with the offences mentioned above.

The petitioner''s defence was that he was innocent, that he merely did what he was asked by the Sub-Post Master Bose and that he was in no way responsible. On the other hand Mr. Bose, the petitioner''s co-accused, stated that he was not responsible, but that he trusted the petitioner implicitly in the preparation of the register and initialled the same; from time to time as prepared by the petitioner; and that though he might be guilty of negligence, he was guilty of no crime.

The case was tried by the Sub-Divisional Officer with the result that the accused Sub-Post Master Bose was acquitted and discharged, and his acquittal was maintained and upheld by the Sessions Judge on appeal. Thus Bose is out of this case. The petitioner was convicted by the trial Court and sentenced to one year in respect of each charge preferred against him, each period of one year to run concurrently. On appeal the learned Sessions Judge maintained the petitioner''s conviction, and the present application is made before us to set aside that conviction.

Two points are taken and pressed forcibly by Mr. Varma on behalf of the petitioner. The first point is one of importance and interest, as it raises a serious point touching the construction of the Code of Criminal Procedure.

Mr. Varma argues that there was no power to try the accused persons together jointly even where they committed the same offence or three of the same offences within a period of 12 months; that is to say, that Section 234 of the Code of Criminal Procedure only applies to one person and does not and cannot apply to two or more persons; and that there is no jurisdiction to try under the Code of Criminal Procedure persons jointly even though they may commit the same or similar offences, save under the provisions of Section 239 and then only if the offence with which they have been charged arises out of the same transaction. It is argued before us by Mr. Varma that the transactions were separate, each distinct and separate from the other, and that consequently the trial of the accused persons, the petitioner and Mr. Bose, even u/s 239 would have been illegal. If Mr. Varma is right in his argument as to the illegality of the trial, then the conviction cannot stand and will have to be set aside. In support of his argument the learned Counsel for the petitioner relies entirely upon the case reported as Budhai Sheik v. Emperor 33 C. 292 : 10 C.W.N. 32 : 3 Cri. L.J. 126. In that case their Lordships of the Calcutta High Court held that the meaning of the word "person" mentioned in Section 234 of the Code of Criminal Procedure was applicable in the singular number and did not apply to the case of two persons or more than two, who might be guilty of committing three of the same kind of offences within a period of one year. With great respect to the learned Judges, who decided that case, I venture to say that the reasoning of their Lordships is not very convincing. However, it appears to us that their Lordships in that case seemed to have based their judgment entirely upon the position in which Section 234 is to be found in the classification or group of sections set out in the Code. Section 233 is a general section, which provides that every person charged with an offence or with separate offences should be separately tried for each offence; however, exceptions from the general rule are provided for in the succeeding Sections 234 to 239 which are permissive, and not mandatory; Section 234 runs: "When a person is accused of more offences than one of the same kind committed within the period of 12 months from the first to the last of such offences, he may be charged with and tried at one trial for any number of them not exceeding three." Reading that section I cannot understand why any limitation should be sought to be placed upon the word person" as defined by the General Clauses Act.

No doubt the Calcutta High Court in the case reported as Bhudhai Sheikh v. Emperor 33 C. 292 : 10 C.W.N. 32 : 3 Cri. L.J. 126 held that the word person applied merely in the singular number; and that it was not applicable to the case of two or more than two persons. The decision reported as Budhai Sheik v. Emperor 33 C. 292 : 10 C.W.N. 32 : 3 Cri. L.J. 126 was followed in a case reported as Tilakdhari Das v. Emperor 6 C.L.J. 757;6 Cri.L.J. 442 and there likewise two distinguished Judges of the Calcutta High Court followed the rule laid down in Budhai Sheik v. Emperor 33 C. 292 : 10 C.W.N. 32 : 3 Cri. L.J. 126 and Mr. Justice Mookerjee and another learned Judge also expressed the same view, but the ratio decidendi of these decisions do not commend themselves to us and they appear to be completely at variance with the thoughtful and considered judgments of two Judges of the Allahabad High COURT in a case reported as Emperor v. Bechan Pande 36 Ind. Cas. 879 : 38 A. 457 : 14 A.L.J. 700 : 18 Cri, L.J.47 and in which Mr. Justice Piggott and Mr. Justice Walsh laid down most emphatically that in Section 234 of the Code of Criminal Procedure the word "person" is to have its ordinary and natural meaning as defined by the General Clauses Act and is not to be restricted to the singular number. The learned Judges suggest that it would reduce the administration of the Criminal Law to a farce if there could be no trial of accused persons jointly guilty, unless under the provisions of Section 239, and at page 460 of the report their Lordships say on the question of law involved for our consideration: "We have expressed our opinion in a case which has just come before us. The question of the operation of Section 234 of the Code of Criminal Procedure was raised in a simple form. In the present case it is suggested that the question is complicated by the fact that six persons in all were involved in each of the three charges. The provisions of Section 233 and the following sections of the Code of Criminal Procedure require to be considered together. They occur in a sub-division of the Code headed ''Joinder of Charges''. The general principle that there shall be a separate charge and a separate trial for every distinct offence of which any person is accused is first laid down in Section 233 of the Code. Then follow a number of sections specifying possible exceptions. In these sections where a Court is empowered to try offences jointly or accused persons jointly, the word ''may'' is used in each case, and not the word ''shall'' as used in Section 233, where the general principle is laid down. These are, therefore, empowering sections, which require to be used with due discretion and in suitable cases. In the present case the prosecution set out to prove that the six accused persons, acting together, had committed each of the three offences specified in the several charges. On the wording of the section there was nothing illegal in the framing of the three joint charges against all the accused, or in the trial of these three charges at one... trial."

That expression of opinion as to the interpretation to be given to Section 234 commends itself to us. Certainly it is consistent with the principles of the Criminal Law of England; and I think not inconsistent with the principles of the law of Criminal Procedure enacted in Section 234 as to what the law is, and ought to be. I do not say that in every case where persons are jointly accused that the Crown must necessarily try them together. The section is an empowering section; but no Magistrate or Judge should try or allow an accused to be put on trial jointly with another if he thinks the effect of so doing would be prejudicial to the interest of the accused. But as to the method of procedure it is for the trial Court in the exercise of its discretion to settle and determine whether the trial should be joint or not. If a joint trial would prejudice the accused, then obviously the trial should be separate.

In this case at the trial no objection was taken whatsoever by the accused to the joint trial. The trial proceeded and the conviction was pronounced, and it was not till the accused went before the District Judge on appeal that for the first time it was urged or suggested that the accused persons having been tried together the original trial was illegal and void by law. I think that if there was any likelihood or fear that the accused would have been or was in fact prejudiced by a joint trial with his co-accused, he would have been alert to raise the question of jurisdiction at the earliest possible moment. Having taken his chance and proceeded to trial, the petitioner for the first time urges after conviction that he has been prejudiced by what has been done. This disposes of the first point which has been taken by Mr. Varma on behalf of the petitioner.

The second point which he has taken is, that the evidence in respect of two charges does not warrant a conviction u/s 409 of the Indian Penal Code, that is to say, that with regard to first two items, namely, Rs. 38-1-0 alleged to have been misappropriated on the 6th July 1916, and Rs. 100-4-0 on the 31st July 1916, the evidence shows these items were taken for a mere temporary loan to tide over a previous financial difficulty, in one case for two weeks and in another for 12 days; but that eventually they found their way into the pockets of the persons who were entitled to receive the money and Mr. Varma, therefore, argued that there was no user of the money or misappropriation by the petitioner within the meaning of Section 409 of the Indian Penal Code, or at least that there was no user of the money with any intention of committing a criminal breach of trust.

With regard to the third item no question arises. The sum of Rs. 140-12-0 was admittedly received, retained, misapplied and used by the petitioner for his own purposes. The learned Sessions Judge in summing up the evidence very candidly observes that in regard to the first two items, the evidence shows that the accused did retain them, but the money was afterwards refunded and paid to the persons properly entitled to receive it though late. Mr. Varma says that though his client was guilty of a breach of a rule of the Post Office Department, yet he was not guilty of a criminal breach, of trust. Well the lower Court answered that argument by relying on the express admission and confession made by the petitioner himself. This is referred to as Exhibit A. In that exhibit the petitioner stated that on two other occasions he did misapply public money which came into his possession in the discharge of his duty; and from that admission it is apparent that he did commit criminal breaches of trust in respect of the other transactions; and on this admission the prosecution asked the Court to infer that there was in the mind of the petitioner, at the time when he got the various sums of money question, the intention to use them for his own purposes within the meaning of Section 409, Indian Penal Code. We do not think that this was an unfair inference to draw, more especially when the admission of the accused coupled with the evidence showed on the part of the prisoner a systematic course of dealing involving the misappropriation of public money and within quite a recent date from the commission of the first offence charged and which the petitioner admitted. After giving our best consideration to the second point we also think that the petitioner is not entitled to succeed, as the confession or statement made by the petitioner is such as to warrant an inference that the petitioner retained the money so long in his hands in breach of the rules of the Post Office as to clearly show an intention on his part to use the money for his own purposes.

The third argument that has been addressed to us is on the question of sentence. We have been asked to reduce the sentence; but a breach of trust committed by a person who is employed in a Post Office in respect of money belonging to the public is a grave offence; and we ought not to encourage the public to think that offences of this character can be dealt with lightly; to do so would be a great injury to the administration of justice and the public service.

We have considered all the points argued very carefully and we have come to the conclusion that it is quite impossible to reduce the sentences even by one day.

The application is rejected.

Mullick, J.

I agree.