(1) After stating the facts his Lordship proceeded)- It is urded that the second head of the charge Infringed the express provision contained in the proviso to section 222(2) of the code of criminal Procedure, and on that account hte trial held be force the Court of sessionwas illegal.Originally the harge related to a period between 6th March 1949 and 31st March 1951. It appears that the attention of the learned trail Judgewas invited on 2nd June 1958 to the fact that afetr June 1950 no advacen was made to the fourth accused or to his firm and, therefore,the charge sould have been restricted to a period between 6th March 1949 and 30th June 1950. The learned Juge then amended the charge by striking out the figure'30-6-1050' in the second head 0of the chargeand procedded with the trial. It appears that by that time a large number of witnesses were examined for the prosecution.,but no objection was raised on behalf of the accused to the amendment of the charge because it was in substance a formal amendment. But it is urged that even after the amendments of the charge the period coverred exceeded one year and that the charge therefor infringed the section 222 of the code of Criminal Procedure.
(2) Section 222(1) of the Code of Criminal Procedure provides that particulars as to time, place and person relating to the offence alleged are tobe set out in the charge. By sub-section (2) it is provided.
'When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is allegged to have been committed and the dates between which the offence is allegged to have been committed. without specifying particluar items or exact dates., and the charge so frame shall be deemed to be a charge of one offence within the meaning of one section 234.:
Provided that the time included between the first and last of such dates shall not exceed one year'
This provosion as incorporated for the first time when the Code of Criminal Procedure ,1898 was enacted.Under the Code of 1882 there was no provison similar to sub-section(2) of section 222 and in cases where there was a charge of criminal and in cases where there was a charge of criminal misappropriation or criminal breach of trust it was necessary to frame a distinct charge in respect of each ite of money mispapropraited and a charge specifying an aggregate sum allegged to have been misappropriated when the sum misappropraited consisted of separate items misappropraited on different occasions was held by some courts to be illeagl. The Legilature then intevenened and enacted sub-section(2) wherey a charge against an accused person for the offence of criminal breach of trust or dishonest appropraition of money specifying the gross sum in respect of which the offence was allegged to have been committed, but not specifying the particular items or the exact dates on which the amounts were mispapropraited fulfilled the rquiremnts of section 222(1) .But the legislature by the proviso to sub-section (2) provided that the time included beteen the firts and last dates hslla not exceed one yar. For the purpose of section 234 of the Code of Criminal Procedure a charge in respect of gross sum was to be regarded as a charge of one offence. Section 234. by the first sub-section enables the court to try a person accused of more offences than one of the same kind committed witin the space of twelve months from the first to last of such offences, were the offences do not exceed three in number.Evidenrtally in this case the period for which the charge was framed originally by the learned Judge and even after it was amended covered a period exceeding one year, and prima facie the charge contravened section 222(2) of the Cod eof Crimnal Procedure.
(3) In Subrhamanya Iyer v.King Emperor IL.R25 Mad 61 thier Lordships of the Council held that an indictment which ontravened the provison of sections 233 and 234 of the Code of Criminal Procedure and which did not fall within the provisions of the section 235(1) of the Code was bad and the trial held on such a charge was illegal. The Judicial Committe held that the Court having dis-regarded as express provison of law as to the mode of trial, it was not merely an irregularity such as could be remedied by the section 537 of the the Code of Criminal Procedure and therefore, the conciction should be set aside. In that case,there were 41 charges against the accused for exhortionand bribery extending over a period of two years. This the Lord Chancellor stated was
' Plainely in contravention of the Code of Criminal Procedure ,Section 234 which provided that a person may only be tried for three offences of the same kind if committed within a period of twelve months.'
It was observed by their Lordships that the defect, if any, in the trial was not cured by section 537 of the Code of Criminal Procedure. their Lordships observed.
Their Lordships are unable to regard the disobediance to an express provison as to a mode of trial as mre irreuglarity . Such a phrase as irregularity is not appropraite to the illegallity of trying an accussed person for different offences at the same time and those offences being spread over a longer period than by law could have been joined together in one one indictment.... The remdying of mere irregularities is familair 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 postively enacts that such a trial as that which has taken palce here shall not be permitted that this contravention of the Code comes within the Description of error,omission,or irregularity.'
This view was taken by their Lorships of the Privy Council on the terms of section 537 of the Code of Criminal Procedure before it was amended by Act 26 of 1955..As we will presently point out, the amendment has made no substantial difference except on one point to whcih we will advert.
Under Cl.(a) of S.537 of Coe of Criminal Proceudre,as it sood before the amendmeny by Act 26 of 1955, no finding sentence,or order passed by a Court of competent jurisdiction was liable to be rversed or altered under Chapter XXVII or on appeal or revision on account oif any error. Omission or irreugularity in the complaint,summons,warrant,charge,proclamation,order,judgment, or other proceedings before or during trial or in any enquiry or other proceedings under the code .But their Lordships held that the disobediance of an express provison as to a mode of trial wa not a mere irregularity bu it amounted to an illegality in trying the case, and that a trial of an accused person in a manner contrary to an express provison made in the Code did not come within the description of error,omission or irregularity within the meaning of .537 of the Code of Crimina Procedure.In that case, it is evident that contrary to the provision of s.234 of the Code there were as many as 41 chages and those 41 charges were spread over a period exceeding one year and their Lorships held that the trial which contravened the provision of S.234 amounted to an illega.lity and as the trial ' was prohibited in the mode in which t was conducted' the conviction should be set aside. By parity of reasoning, in this case also it must be held that when the trial was prohibited in the mode in which it was codcuted in the court below,Viz., by framing a charge in respect of a period exceeding one year, the conviction recorded at the trial must be set aside.
But he learned Govt. Pleader urged before us that since the judgment in Subramanya Ayyar's Case ILR 25 Mad.61 was delivered the privy Council itself has taken a different view as to the true effect of mandotary provisons contaied in the Code of Criminal Procedure and this court may not be justified in extending the rule in Subramanya Ayyar's case ILR.25 Mad 61 to cases not goverened by S.234 of the Code and our attention was invited to two subsequent judgments of their Lordships of the Privy Councill.In Abdul Rahman v. Emperor , the contravention which was relied upon was the non-reading of depositions of witnesses in the presence of the accused and his pleader. It was held by the High court at Rangoon that the failure to read the depositionsd of the witnesses examined at the trial in presence of the accused and his pleader amounted to an irregularity within the maning of S.537 of the Code of Criminal Procedure and that as no failure of justice was occasioned S.537 saved the conciction from Challenge. Their Lordships observed in dealing with the question whether there was compliance with the terms of S.360 of the Code of Criminal Procedure.
'.... it is dangerous I cases of criminal law to accept equivalents, and except in cases in which reading over to the witness would be absurd,as,for example, with a stone deaf person, the provison should be complied with.'
They the considered whether the non-complaince vitiated the trial. After a consideration,of thje case law and the statutory provosions,they observed that the bare fact of such an ommission or irreugularity as occured in the case under appeall, unaccompanied by any probable sugestion of failure of any ustice,having been thereby occasioned was not enough to warrant thequashing of a conviction which in the view of the Judicial Committe may be supported by the curative provisions of Ss.535 and 537 of the Code. This case is evidently an authority for the proposition that a breach of mandotaory provison does not render the trial of an accused person illegal,however regrettable it may appear that the breach should have occured.
(6) These two cases were considered in a subsequent judgment reported in pulukkuri Kotayya v. Emperor.74 App.65 : AIR 1947 PC 67, Sir John Beaumont in delivering the judgment of the Judicial Committe observed.
' When a trial is conducted in a manner dsifferent from that prescribed by the Code (as in N.A. Subrahmanya Iyer's case 28. InD App 257 the trial is bad, and no question of curing an irregularity commited by the court in maintaining a full record of theevidence when it was not bound to do so. We are therefore unable to hold that the principle of the case in : AIR1948All278 has any application to the facts of the present case.
(13) Chapter XIX of the Code of Criminal Porocedure deals with the form of charges and the joinder of charges. The changes in a criminal case where the staue prescribes that a chrge ' shall be frammed': is the very foundation of the trial. It is true that a mere error or ommission or irregularity,may not justify a court of appeal in setting aside the conviction otherwise duly recorded. But it cannot be said that every infringement of the provosions contaied in Chapter XI of the Code which are mandottorily framed justifies the Court in holding that the infringement amounts to an error,ommission or irregularity within the meaning of s.537. Insection 234.of the Code,which is an exception to S.233, it is enacted that a person who is accused of more offences tahn of of the same kind committed within the space of twelve months may be chrged with an tried at one trial,provided the number of offfences does not exceed three.Even though in terms section 222 is not made an exception to S.233, by reason of the incorporation of S.234 in sub-s(2) of S.222 it must substantially be regarded as illegal and the trial on such a crge as vitiated, we fail to see any reaon for holding that a contravention of the provision of S.222(2) is rectifed by the curative provison of S.537
(14) Our attenton was invited by the learned Governement Pleader to the amendment which has made in S.537 of the Code by Act.26 of 1955.It was urged that the earlier authorities must be regarded as susperseded by the amendment made in Section 537. Under Cl.(a) of Section 537 as it stood before the amendment,by reason of an error,ommission or irregularity inter alia in a charge, a Judgment of a Court of a competant Jurisdiction was not liable to be rversed or altered on appeal or revision. By Act 26 of 1955,the word ' charge' was deleted from clause (a) of section 537 and a new clause (b) was enacted as follows:-
'(b) of any error, ommission or irregulkarity in the charge,including any misjoinder of charges'. In substance,by the amendment it is provided that a misjoinder of chrges is to be regarded merely as an irregularity and not an illelity.To that extent,the cases decided before the amendment may be regarded as superseded. But where a trial has beenheld on a charge which is vitiated not on account of misjoinder of chrges, but on the score of failure to comply with an express direction concerning the manner of holding the trial, the provision of section 537 will not be attracted thereto.
(15) The learned Government Pleader also urguest before us that section 529 sets out the irregularities which do not vitiate the proceedings and section 530 sets our the irregulkarities whcih vitiate the proceedings,and that is not provided in secion 530 that an infringement of section 222(2) vitiates the proceeding in which it occurs. The learned Governemnt Pleader,therefore urges that the Legislature having failed expressely to provide that an infringement of the provision of section 222(2) is an irregularity which vitiates the proceedings,the court would not be justified in holding that it has that effect,But a contravention of secton 234 of the code is not one of the contraventions referred to in section 530,and it was still held by the Privy Council that the contravention vitiated the trial. We are therefore unable to accept the argument of the learned Government Pleader based on section 530 of the Code of Criminal Procedure.
(16) It was also urged by the learned Governemnt Pleader that the trial for the offence of conspiracy was severable from the trial for the offences under sections 406 and 408 of the Indian Penal Code,and therefore this Court,notwithstanding the illegality committed in the trial for the offences under section 406 and 408 of the Indian Penal Codecaqn still maintain the convivtion of the accussed for the offence of conspiracy under section 120B of the Indian Penal Code. WE are gain unable to accept that contention.the accussed have been tried on a composite charge,and the charge of criminal conspiracy and the charge of criminal breach of trust are so inextricably connected with each other that it is impossible to separate the trial and hold that the trial in so far as the offences under section 120B of the Indian Penal Code is concernedis not itaited even though the trial for the offences under sections 406 and 408 of the Indian Penal Code is vitiated.( The rest of the Judgment is not material for this report.)
(17) Conviction set aside.