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In Re: Ochhavlal Bhikhabhai - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 119 of 1933
Judge
Reported inAIR1933Bom447; (1933)35BOMLR985
AppellantIn Re: Ochhavlal Bhikhabhai
Excerpt:
.....v. emperor (1914) i.l.r. 42 cal. 1153, and emperor v. gopal raghunath (1928) 31 bom. l.r. 148, followed.;hence, where the accused are charged with and convicted of the offence of conspiracy under section 120b of the indian penal code, 1860, they can again be charged with and convicted of the separate offences of cheating (section 420 of the indian penal code) committed by them in pursuance of that conspiracy, under section 403(2) of the criminal procedure code, 1898. - - 957 the illustration given is precisely the one with which we are concerned in the present case. the position may clearly be maintained that the two different offences of conspiracy to cheat committed by a and b and the offence of cheating committed by a alone, have been committed in the same transaction......sessions court at godhra, no further proceedings should be taken against them in respect of the offence committed in pursuance of the criminal conspiracy. but apart from there being no record of that agreement, it is not such an agreement as can be enforced by this court.11. in these circumstances, the view taken by the learned district magistrate, which is expressed at page 10 of his judgment, appears to be correct. he says :-i feel that the mere mention of this incident at dakore in no way amounts to the offence of cheating at dakore being tried at panch mahals. as i read section 120b the case at panch mahals before the sessions was under section 120b and was covered by clause (1) of section 120a...i cannot by any stretch of imagination see that mere mention of this dakore incident.....
Judgment:

W. Baker, Acting C.J.

1. The petitioners apply for revision of the order passed by the District Magistrate of Kaira setting aside the order of discharge and directing further enquiry against them for offences under Sections 420, 114 and 120B, Indian Penal Code, they having been originally discharged of the same offences by the Resident Magistrate, First Class, Nadiad.

2. The facts are that in the year 1926 there were a largo number of cases of cheating by representing that it is possible to duplicate currency notes, committed in the Kaira, Panch Mahals and other Districts, and it was found that these offences were being committed by a gang of which the present applicants were members. The applicants along with others were committed to the Court of Session at Godhra by the First Class Magistrate of Godhra on a charge under Section 120B of the Indian Penal Code, and in that charge are set out a number of specific instances of cheating various persons committed by the members of this gang. Amongst these appears the name of one Somnath Motiram of Dakore. The accused including the present applicants pleaded guilty in the Sessions Court, They were convicted and sentenced to various terms of imprisonment and fine by the Sessions Judge of Panch Mahals in April 1932. But thereafter the present applicants were prosecuted for the offences under Sections 420, 114 and 120B, Indian Penal Code, in respect of cheating Somnath Motiram of Dakore by representing to him that they would duplicate currency notes and thereby inducing him to deliver currency notes to them. The case came before the Resident Magistrate of Nadiad, and he was of opinion that the accused having been previously tried and convicted by the Sessions Court at Godhra in respect of the act which was the subject-matter of the case before him, Section 408 of the Criminal Procedure Code was a bar to the trial, and he, therefore, discharged accused No. 1 Ochhavlal Bhikhabhai, and No. 2 Sankalchand Maganlal under Section 403. Against this order a revisional application was made by the Crown to the District Magistrate of Kaira, who, under Section 436 of the Criminal Procedure Code, ordered further enquiry into the matter, being of opinion that Section 403 was not a bar to the trial. Against this order the applicants have made the present application for revision.

3. The point is one of some importance, but there is some authority on it. Section 403 of the Criminal Procedure Code says :-

(1) A person who has once been triad by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237.

(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, Sub-section (1).

4. The remaining clauses of the section are not material to our purpose.

5. It will appear, therefore, that Section 403(1) will operate in cases covered by Sections 236 and 237, but will not operate in cases covered by Section 235, Sub-section (1). Section 236 refers to cases where it is doubtful what offence has been committed, and therefore, does not apply, and Section 237 refers to cases where a person is charged with one offence and can be convicted of another. That also has no application. Section 235, Sub-section (1), says:-

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.

6. The question that will arise, therefore, is whether the criminal conspiracy and the actual acts of cheating were so connected together as to form the same transaction in which more offences than one were committed by the accused and whether they might have been charged with and tried at one trial for such offence. It might be noted that the charge in the Sessions Court for which they were convicted was under Section 120B, viz., criminal conspiracy, and that they were not charged with or convicted of the individual acts of cheating which took place in pursuance of the conspiracy. Those individual acts are mentioned in the charge as overt acts which are necessary in order to prove the offence of criminal conspiracy, Now, there is authority for holding that in cases of this character, where in pursuance of the criminal conspiracy certain acts are done by the persons taking part in the conspiracy, those acts form part of the same transaction and under Section 235(1) the accused may be charged with and tried at one trial for such offences. It is, of course, clear in the present case that they were not charged with those offences nor tried for them. The cases are mostly of the Calcutta High Court. In Amrita Lal Hazra v. Emperor I.L.R. (1915) Cal. 957 the illustration given is precisely the one with which we are concerned in the present case. The Court said (p. 983) :-

To take one illustration : A and B conspire to cheat X; in pursuance of that conspiracy and in fulfilment of its object, A cheats X on a specific occasion. The position may clearly be maintained that the two different offences of conspiracy to cheat committed by A and B and the offence of cheating committed by A alone, have been committed in the same transaction.

7. And reference is made to two other cases of the Calcutta High Court, The Superintendent and Remembrancer of Legal Affairs, Bengal v. Monmohan (1914) 21 C.L.J. 195 and Harsha Nath Chatterjee v. Emperor I.L.R. (1914) Cal. 1153 21 C.L.J. 201 In this latter case, Harsha Nath Chatterjee v. Emperor, it was held that a charge of criminal conspiracy to manufacture arms, under Section 120B of the Indian Penal Code read with Section 19(a) of the Indian Arms Act, may be tried jointly with charges of offence under Sections 19(f) and 20 of the latter Act committed in pursuance of the object of the conspiracy, and that as long as the conspiracy continues the transaction which began with the forming of the common intention continues, and the offences under Sections 19(f) and 20 of the Arms Act are committed in the course of the same transaction. That case was followed by this Court in Emperor v. Gopal Raghunath (1928) 31 Bom. L.R. 148 a judgment to which I was a party. That was a case of counterfeiting, and at page 151 it is stated that-

the separata act done by any of the conspirators in pursuance of that conspiracy could be joined in the same trial.

8. Applying these principles it would be seen that the offences committed by various members of the conspiracy in pursuance of the object of the conspiracy are offences separate from the commission of the conspiracy, which is under Section 120B, and could have been separately charged and tried under Section 235 (1) at the same trial. This being the law, it is quite clear on the record in this case that the offence of conspiracy under Section 120B was the only offence charged against the accused and was the offence of which they were convicted, and the separate offences of cheating committed by them in pursuance of that conspiracy were not made the subject of the charge, nor were they charged with or tried for them under Section 235, Sub-section (1). This being so, Section 403(1) has no application, but the case is governed by Section 403, Sub-section (2), which says :-

A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, Sub-section (1).

9. The accused have not been tried for the offence of cheating at Dakore, and therefore, Section 403 is no bar to their trial for that alleged offence.

10. It has been further argued that there was an agreement between the Police Inspector, who was instructing the prosecution, and the defence that the accused having pleaded guilty at the trial in the Sessions Court at Godhra, no further proceedings should be taken against them in respect of the offence committed in pursuance of the criminal conspiracy. But apart from there being no record of that agreement, it is not such an agreement as can be enforced by this Court.

11. In these circumstances, the view taken by the learned District Magistrate, which is expressed at page 10 of his judgment, appears to be correct. He says :-

I feel that the mere mention of this incident at Dakore in no way amounts to the offence of cheating at Dakore being tried at Panch Mahals. As I read Section 120B the case at Panch Mahals before the Sessions was under Section 120B and was covered by Clause (1) of Section 120A...I cannot by any stretch of imagination see that mere mention of this Dakore incident was tantamount to their being tried for Dakora offence and for which they came to bo convicted.

12. In these circumstances, we see no reason for interference and the rule will be discharged.

Divatia, J.

13. This case raises a somewhat important point relating to a trial for an offence after a previous conviction for the offence of conspiracy in which the former offence was treated as one out of the several acts going to prove the conspiracy. The previous conviction in this case has been a conviction for the substantive offence of conspiracy under Section 120B of the Indian Penal Code alone. There was no trial and there was no conviction for any of the acts, which may amount to an offence, forming part of the conspiracy. In fact, the act which constitutes the present offence had been treated only as an overt act which was evidence of an agreement to do an illegal act within the meaning of Section 120A of the Indian Penal Code.

14. Now, the conviction for this conspiracy alone cannot, I think, be regarded as a bar to a conviction in future for an act, which, although it may be regarded as merely an overt act in so far as it was one out of the several acts which went to prove the conspiracy, was, none the less, a separate offence under the Indian Penal Code. Section 403 of the Criminal Procedure Code states in Sub-section (2) that a person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, Sub-section (1). Now, it is clear on the authorities that the offence of conspiracy and the offence of cheating in this case, which was one of the acts in proof of the offence of conspiracy, may be tried together jointly under Sub-section (1) of Section 235 of the Criminal Procedure Code. That being BO, under Sub-section (2) of Section 403 of the Criminal Procedure Code, the previous conviction for the offence of criminal conspiracy cannot be a bar to a subsequent conviction for the offence of cheating. It cannot be said that merely because this act of cheating was considered in the previous case and the Court came to the conclusion that there was a criminal conspiracy because this act of cheating was one of the acts which was evidence of the conspiracy, therefore, the accused have been previously convicted either impliedly or expressly for the offence of cheating itself; nor can it be said that if the prosecution was with regard to one of the offences which formed part of one transaction, therefore, subsequently there could be no prosecution for any other offence or offences which formed part of the same transaction. Under Section 235, Sub-section (1), it is open to the prosecution to charge a person with one of the offences and subsequently to charge him with another, although both of them form part of one and the same transaction. Therefore, I think in this case the learned District Magistrate is right in holding that the plea of the accused of previous conviction cannot avail them and that therefore the trial is not vitiated by any infringement of the statutory provisions of Section 403 of the Criminal Procedure Code.


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