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The State of Bombay Vs. Umarsaheb Buransaheb Inamdar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 237 of 1959
Judge
Reported in(1962)64BOMLR520
AppellantThe State of Bombay
RespondentUmarsaheb Buransaheb Inamdar
DispositionAppeal allowed
Excerpt:
.....of 1895), sections 222(2), 235(1), 537 - indian penal code (act xlv of 1860), sections 406, 120-b--accused charged with breach of trust in respect of sum embezzled between period, exceeding one year--offence committed, in pursuance of criminal conspiracy entered into by accused--whether charge framed contravenes section 222(2), criminal procedure code and vitiates trial.;the accused were charged under section 406, indian penal code, 1860, with respect to the commission of breach of trust of a certain sum between the period march 6, 1949, and june 30, 1950. the offence was said to have been committed in pursuance of a criminal conspiracy entered into by them. on the question whether the charge framed contravened the provisions of section 222(2) of the criminal procedure code, 1883, which..........120-b read with section 406, indian penal code, and of an offence under section 406, indian penal code, committed in pursuance of the criminal conspiracy they had entered into. they were also tried, but acquitted of other offences charged with. they appealed against their conviction of the offence under section 120-b read with section 406, indian penal code, and of the offence under section 406, indian penal code. the charge under section 406, indian penal code, was with respect to the commission of breach of trust of a sum of rs. 2,18,369 between the period march 6, 1949, and june 30, 1950. it was contended before the high court that the charge framed contravened the provisions of sub-section (2) of section 222 of the code which allowed a combined charge with respect to the amount.....
Judgment:

Raghubar Dayal, J.

1. This appeal, on a certificate granted by the High Court of Bombay, raises the question whether the contravention of the provisions of Sub-section (2) of Section 222 of the Code of Criminal Procedure, hereinafter called the Code, in the framing of the charge against an accused, vitiates the trial.

2. The facts leading to the appeal, in brief, are as follows. The respondents were charged and tried at the same trial of the offences under Section 120-B read with Section 406, Indian Penal Code, and of an offence under Section 406, Indian Penal Code, committed in pursuance of the criminal conspiracy they had entered into. They were also tried, but acquitted of other offences charged with. They appealed against their conviction of the offence under Section 120-B read with Section 406, Indian Penal Code, and of the offence under Section 406, Indian Penal Code. The charge under Section 406, Indian Penal Code, was with respect to the commission of breach of trust of a sum of Rs. 2,18,369 between the period March 6, 1949, and June 30, 1950. It was contended before the High Court that the charge framed contravened the provisions of Sub-section (2) of Section 222 of the Code which allowed a combined charge with respect to the amount embezzled within a period of a year. The High Court agreed with this contention and, holding the trial void, set aside the conviction of the respondents and acquitted them of those offences. The High Court, however, maintained the order of acquittal in respect of the other offences. The State of Bombay (now Maharashtra) has filed this appeal against the order setting aside the conviction of the respondents.

3. It is not necessary for us to determine in this appeal the general question whether the contravention of the provisions of Sub-section (2) of Section 222 of the Code, in the framing of the charge, will always make the trial void, as, in this particular case, the offence under Section 406, Indian Penal Code, charged against the respondents was said to have been committed in pursuance of a criminal conspiracy entered into by them. It will, therefore, suffice, for the purpose of this case to consider whether such a defect in the charge vitiates the present trial.

4. Section 222 of the Code is one of the sections in Chapter XIX which deals with Form of Charges. Sections 221, 222 and 223 deal with what should be mentioned in the charge. The whole object of the charge is to inform both the prosecution, and the accused particularly, of the accusation the prosecution has to establish and the accused has to meet. So long as the accused knows fully what accusation he has to meet, any error in the narrative of the charge need not be fatal to the trial. Sections 225, 232, 535 and 537 save the trial from being vitiated unless of course the accused has been prejudiced and failure of justice has taken place.

5. Sections 233 to 239 deal with the joinder of charges, and they speak not only of an accused being charged with offences, but of such charges being tried separately or jointly. Section 233 states that for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately, except in the cases mentioned in Sections 234, 235, 236 and 239. It is clear that the general rule is that there should be a separate trial for each distinct offence of which a person is accused. It follows that each item of property of which an accused is alleged to have committed breach of trust, constitutes one distinct offence and that, in general, it would be necessary to have as many trials as there be distinct offences of criminal breach of trust committed by the accused. But Section 222(2) provides that when the accused is charged with criminal breach of trust, the charge may be with respect to the gross sum embezzled within a period of one year and that the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 234. The charge framed in the present case was with respect to the gross sum embezzled within a period of more than twelve months, the period being between March 6, 1949 and June 30, 1050. The charge, therefore, was in contravention of the provisions of Section 222(2). This defect in the charge, however, did not lead to any prejudice to the accused in the trial and, therefore, did not vitiate the trial, in view of the provisions of Section 537 of the Code.

6. The charge could have been split up into two charges, one with respect to the offence of criminal breach of trust committed with respect to the amount embodied between March 6, 1949 and March 5, 1950, and the other with respect to the amount embezzled between March 6, 1950 and June 30, 1950. The two offences of criminal breach of trust could have been tried together in the present case, as the offences were said to have been committed in pursuance of the criminal conspiracy entered into by the accused. All the offences committed in pursuance of the conspiracy are committed in the course of the same transaction and, therefore, can be tried together at one trial, in view of Sub-section (1) of Section 235 of the Code which provides that 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. It is, therefore, clear that no prejudice was caused to the accused, by the defect in the charge.

7. A similar view has been taken by this Court in K. Kunhahammad v. The State of Madras : 1960CriLJ1013 .

8. We may further point out that the High Court should not have expressed its opinion or passed any order with respect to the acquittal of the respondents for the other offences when the order of acquittal was not before it for consideration and when it had held the entire trial to be void on account of the contravention of the provisions of Sub-section (2) of Section 222.

9. We, therefore, hold that the trial of the respondents was legal and therefore allow the appeal and set aside the order of the High Court. Their appeal against their conviction has not been heard on merits and, therefore, we remand the case to the High Court for further hearing according to law.


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