Zainulabuddin vs State of Hyderabad

This revision petition No. 23 of 1953-54 on behalf of Zainulabedeen is directed against the appellate order of Shri Nageshwari Pershad, Sessions Judge of Warangal, who affirmed the judgment of the Magistrate, First Class, Warangal convicting the petitioner of charges under Sections 409 and 477A, Indian Penal Code for criminal breach of trust and falsification of accounts and sentencing him to a term of rigorous imprisonment of one year on each count to run concurrently and also to a fine of Rs. 500/- for each offence in default of the payment of which he was to undergo further three months'' rigorous imprisonment for each default.

Along with this revision, we have to deal with a reference made by the learned Sessions Judge recommending the enhancement of sentence in view of the gravity of the offences and for payment of compensation put of fine to the Postal Department. The revision and the reference will be governed by this judgment.

The case for the prosecution as adumbrated in the clumsily worded indictment sheet was that the petitioner was the Sub-Post Master at Warangal and Summayya, accused No. 2 was the second clerk. It was alleged that the petitioner on 17-11-1951, instead of entering correct amounts of money orders paid, made a false entry of an excess amount of Rs. 4000/- in the relevant register and in accordance to the Head Office, which was signed by accused No. 2. The further allegation was that the petitioner again on 19-11-1951 made an incorrect excess entry of a sum amounting to Rs. 4999-15-9 in the relevant registers and showed the same amount in the daily statement of account. The third allegation related to a sum of 223/- of which accused No. 2 was found short when P. W. 1 checked the account on 26-11-1952. At the end of the challan, it was stated that both the accused had dishonestly misappropriated the sums and were severally and jointly responsible for it.

The learned Magistrate after examining eleven witnesses on behalf of the prosecution framed a charge against the petitioner as follows:

That you on 19-11-1951 instead of showing Rs. 267-5-4 in the daily statement of account, entered therein a sum of Rs. 5352-5-0 as the amount of money orders paid to the addressees, and

That during the inspection of 24-11-1951 you were found short of Rs. 3495-4-0, the total sum dishonestly misappropriated thus being Rs. 8695-3-10. You thereby committed offences under Sections 409 and 477A, Indian Penal Code and with-in the cognizance of this Court.

The other accused was likewise charged under 8s. 409 and 477A, Indian Penal Code for defalcation and falsification of accounts alleged to have been committed on 17th and 24th November 1951.

These charges having been framed in accordance with Section 254, Criminal P. C., the trial proceeded before the learned Magistrate who heard a great mass of documentary and oral evidence. On 4-8-1952 he delivered a judgment finding that the charges have been satisfactorily established and he convicted and sentenced both the accused as state above. Both the accused went up in appeal to the learned Sessions Judge who by his Judgment of 11-2-1953 disallowed the appeals and made a reference for enhancement of sentence and for payment of compensation u/s 545, Criminal P. C.

Accused No. 2 has remained content with the appellate order but Zainulataedeen has moved the High Court invoking its jurisdiction u/s 439 of the Code.

We have heard the learned Advocate for the petitioner and the Senior Government Advocate at great length.

The first point that falls for determination is whether there has been a misjoinder of persons and joint trial of both the accused was contrary to law resulting in an illegality which vitiates the whole proceedings. It has not been disputed that Clause (d) of Section 239, Criminal P. C. applies to this case. That clause if written out in full would, read thus:

The persons accused of different offences committed in the course of the same transaction may be charged and tried together and the provisions contained in the former part of this chapter shall, so far as may be, apply to all such charges.

Their Lordships of the Privy Council have in the case of - AIR 1938 130 (Privy Council) (A), laid down the test that in order to see whether several persons can be jointly tried, the court has to look to the accusation i.e., the prosecution case as set forth in the charges themselves, and if according to that case the offences are such as could be regarded as parts of the same transaction, it would be justified in holding a joint trial. It need not consider what the final result of the case would be.

It is apparent from the indictment sheet and the charges as framed by the Magistrate that there was no allegation on the part of the prosecution that the offences of criminal breach of trust and falsification of accounts were committed in the course of the same transaction. On the other hand, the accusation in the challan was that accused No. 2 signed the statement of daily account which the petitioner had prepared on 17-11-1951 after falsifying the accounts to cover the embezzlement of Rs. 4000/-. As to the offences committed on 19-11-1951, accused No. 2 is not alleged to have taken any part and the petitioner is said to be wholly responsible for it. The charge in regard to the sum of Rs. 223/- is solely laid at the door of the second accused. No doubt, the prosecution has used the phrase of joint and several liability for the offences charged but that phrase will not necessarily connote that three distinct offences were committed in the course of the same transaction unless there was also a charge for conspiracy.

The meaning and applicability of Section 239, Criminal P. C., was considered by a Bench of the Calcutta High Court in the case of - ''Budhat Sheikh v. Emperor'' 33 Cal 392 (B) and we are in accord with the reasoning of the learned Judges who decided it. To enable more persons than one to be charged and tried together for more offences than one, the offences must all form part of the same transaction. Section 233 of the Code lays down the general rule that there shall be a separate charge for each accused and that such charge shall be tried separately. The following sections lay down exceptions to the general rule. Sections 234 to 238 apply to cases where one person may be dealt with at one trial for more than one offence. Section 239 applies to the trial of more persons than one jointly. It has been held in - Bhagwant Kishore Vs. Sanwal Das, that where the Criminal Procedure Code lays down as a general principle that each person should be tried separately and there should be a separate charge except as otherwise specially laid down, the exception to the rule must be construed strictly in favour of the accused.

The case of - Ganesh Prashad and Another Vs. Emperor, is directly in point. In that case one of the accused was charged u/s 408, Indian Penal Code with criminal misappropriation of three items of money and another of two items, and the two accused were jointly tried and it appeared that these various items were independent transactions. It was held that the joint trial was illegal. We are, therefore, of the opinion that the whole trial was vitiated by illegality. Their Lordships of the Privy Council have considered the effect of such illegality in - ''Sutarahmanya Aiyar v. King Emperor'', 25 Mad 61.

Lord Halsbury who delivered the judgment of the Board observed at p. 97:

Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity. Such a phrase as irregularity is not appropriate to the illegality of trying an accused person for many different offences at the same time being spread over a longer period than by law could have been joined together in one indictment.... The remedying of - mere irregularities is familiar in most systems of jurisprudence but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted, that this contravention of the Code comes within the description of error, omission, or irregularity.

In this view of the law which has been adopted and followed by this Court in - ''D. Narasayya v. Sarkar-e-Aalee'', 36 Deccan LR 121 (P), the convictions and sentences passed against the petitioner cannot be sustained. No doubt, we would have ordered a retrial but we find that the petitioner has already undergone the sentences imposed upon him and having regard to the unsatisfactory material placed on the record, no useful purpose would be served by ordering a retrial.

For the foregoing reasons, we allow the revision and setting aside the judgments of the courts below, acquit the petitioner. Fine, if realised, would be refunded to him. In the result, the reference made by the Sessions Judge would stand dismissed.