R.K. Chowdhry, J.
1. These are two appeals, one by K. C. Kapoor and the other by Nanak Saran. The police charge-sheeted both of them and both were committed to the Court of the Sessions Judge of Mirzapur for trial; but, on an application made by Nanak Saran, the learned Sessions Judge split the case and tried the appellants separately. He sentenced each of the two appellants to three years rigorous imprisonment and to a line of Rs. 1,000/-. or six months further rigorous imprisonment in default of payment of fine, under Section 409, I. P. C. Both the appeals may properly be disposed of by a single judgment.
2. In August, 1954, when the occurrence leading up to the trials took place, K. C. Kapoor was employed as Divisional Accountant and Nanak Saran as Establishment Clerk in the Accounts Section under Sri Rajendra Prasad Agarwal Executive Engineer, Sirsi Dam at Mirzapur. A sum of Rs. 9,150/-was realised by the Executive Engineer on 23-8-1954 by the sale of trees in the Sirisi reservoir forest. It is said that there was no time to deposit the amount into the treasury on that date. The said amount, along with a cash balance of about Rs. 600/- was therefore put by the Executive Engineer in a box, and the box along with the bunch or keys containing the key of the box was handed over by the Executive Engineer to the appellant K. C. Kapoor, so that the latter might keep the box in the iron safe in his office, 200 or 250 paces away, until the money could be deposited in the treasury the following day.
K. C. Kapoor took the box to his office, the box having been actually carried by the peon Izhar Ahmad. The iron safe in K. C. Kapoor's office had, what has been described as the double lock system; one key of the safe was with K. C. Kapoor and the other with Dafadar Gokul Prasad and the safe could not be opened or closed without the use of both the keys. At the instance of K. C. Kapoor, Gokul Prasad tried to put the box into the iron safe but was unable to do so as the box was too big for that. Another box, in which money used to be kept in the iron safe and which had gone for repair, was thereupon sent for through Gokul Prasad and the money in question was transferred into it from the bigger box. According to the prosecution, the other appellant Nanak Saran was present there all the time.
3. At this stage the prosecution alleges certain conduct to the two appellants implying a conspiracy on their part. It is said that Nanak Saran asked Gokul Prasad to go at once and see if the Executive Engineer was present in his office. Gokul Prasad replied that he would put the cash box into the iron safe first. K. C. Kapoor thereupon said to Gokul Prasad that he must go not only to bring the aforesaid information but also to return to the Executive Engineer the bigger box whose contents had been transferred into the smaller one, assuring Gokul Prasad at the same time that he (K. C. Kapoor) will continue to sit there until his return. Gokul Prasad was thus prevailed upon by the appellants to leave the place with the empty box which he later handed over toIzhar Ahmad peon at the Executive Engineer's bungalow.
The appellant K. C. Kapoor says that as he had to see the Executive Engineer he went to the latter's bungalow with the keys of the empty box which had already been sent with Gokul Prasad, but as he was in haste he left his bunch of keys on the table. When he returned to his office he was told by Nanak Saran that he had kept the box into the iron safe, and Nanak Saran asked him to double-lock the safe. Gokul Prasad says that after delivering the empty box at the Executive Engineer's bungalow he went to his quarters to take medicine, and that when he returned to the office after about 20 minutes he found both the appellants present there but the box into which money had been transferred was not there. When he asked K. C. Kapoor as to where the box containing the money was, Nanak Saran replied that the box had been put inside the iron safe. Gokul Prasad then asked K. C. Kapoor to let him open the safe and have a look into the box to see that the money was there.
Thereupon Nanak Saran again told Gokul Prasad that the box had been put inside the iron safe and asked Gokul Prasad to lock the safe with his key. Gokul Prasad however asked for the other key of the iron safe from K. C. Kapoor in order to satisfy himself that the box was inside the safe, but this enraged Nanak Saran and the latter said to Gokul Prasad that he should trust the Accountant meaning K. C. Kapoor, and make no fuss about it. K. C. Kapoor also asked Gokul Prasad not to make any fuss and assured him that he himself had put the box inside the iron safe. K. C. Kapoor also asked Gokul Prasad to lock the iron safe with his key, assuring him at the same time that everything was all right.
4. All this conduct attributed to K. C. Kapoor by Gokul Prasad on the latter's return from the Executive Engineer's bungalow after delivering the empty box there has been denied by K. C. Kapoor. His statement, on the contrary, was that when Gokul Prasad enquired if the box had been kept in the safe he (K. C. Kapoor) asked Gokul Prasad to open the safe and verify the fact, but that Gokul Prasad was prevailed upon by Nanak Saran not to do so. K. G Kapoor said that Nanak Saran told him that it was his (Nanak Saran's) responsibility, and that Gokul Prasad thereupon locked the iron safe. K. C. Kapoor stated further that lie trusted Nanak Saran because the latter was an old clerk and used to help him in the work relating to cash. One of the witnesses produced was Lachman, the Ghaukidar.
He stated that at about 6 p.m. on the day of the occurrence he was sent away from the office by Nanak Saran to pull water at his residence, and that an his return he met Nanak Saran at the gate of the office compound and saw him carrying a box resembling the one from which the Accountant K. C. Kapoor used to distribute the salaries. On 25-8-1954 Nanak Saran's house was searched by S. I. Ram Kinker Singh and the bunch of keys containing the key of the box into which money had been transferred is said to have been recovered in the presence of two witnesses, Kanhaiya Lal and Farzand Ali. Nanak Saran appellant totally denied having been in the office of K. G. Kapoor on the day in question, and he also denied having taken any box to his house from the office that evening. He admitted recovery of the key of the box from his possession, but stated that K. C. Kapoor had given the key to him for safe keeping.
5. As there was a large sum of money in the iron safe special arrangements for watch and ward were made on that night. Not only the usual Chaukidar Lachman but Gokul Prasad Dafadar and Sadho Swam, a peon in the Executive Engineer'soffice, kept watch on the office, and when the office was re-opened the following morning all the locks were found in tact. K. C. Kapoor went to the Executive Engineer at about 10 a.m. and asked him to permit the use of the Government pick-up to take the money to the bank. The Executive Engineer granted him the permission When the safe was thereafter opened by means of the keys in possession of K. C. Kapoor and Gokul Prasad the box was found missing. Nanak Saran then went to the Executive Engineer at about 10-30 a. m. & informed him that when the safe was opened the cash box was not found there. The Executive Engineer then went to the office and found that there had been no tampering with the safe or with the office locks. He thereupon lodged a report at the Kotwali in Mirzapur at 12-30. Nobody was named as accused in this report.
6. The Magistrate who held the enquiry against the appellants committed both of them to take their trial in the Court of Session for the offence punishable under Section 409, I. P. C. and Nanak Saran for the additional offence punishable under Section 380, I. P. C The learned Sessions Judge made no amendment in the charges; but, as adverted to already, he split the case into two on an application made in that behalf by Nanak Saran. The appellants were therefore tried separately by him for the aforesaid offences. The reasons given by him for doing so were these :
'To my mind there may be three possibilities. Both the accused may have misappropriated the money, or only one of them may have either misappropriated the money or stolen it, or none of them may have committed any of the offences. The defence of the two accused appears to be mutually contradictory .............. If the trial of the one isnot separated from the trial of the other, it is likely that inadmissible evidence against one of the accused may come on record as admissible against the other accused and this may possibly prejudice either of the accused persons.'
It may be stated here that except for one witness Lakshmi Sahai Srivastava in the trial relating to K. C. Kapoor, who spoke of having seen the appellant at the Executive Engineer's bungalow immediately before the entrustment of the box, and the witnesses relating to search in the trial relating to Nanak Saran, the evidence in both the trials was identical. It consisted of the statements of Sri Rajendra Prasad Agarwal, the Executive Engineer and Izhar Ahmad peon concerning the taking of the bigger box from the Executive Engineer's office, the clerks Pritam Singh, Kripa Shankar, Jai Narain Singh and Saeed Ahmad relating to the presence of the appellants in the office, the Accounts Clerk A. K. Banerji relating to the making of entries in the relevant register by K. C. Kapoor in respect of the aforesaid sum of money, the main witness Gokul Prasad Dafadar relating to what happened in the office, Lachhman. Chaukidar relating to his having seen Nanak Saran, carrying a cash box from his office late in the evening, Sadho Saran peon who along with Lachhman and Gokul Prasad kept watch on the office in the night following, and S. I. Jamil Ahmad who investigated the case.
Neither of the two appellants produced any evidence in his defence. The arguments of Sri C. S. Saran, learned counsel for K. C. Kapoor, and Sri P. C. Chaturvedi on behalf of the other appellant Nanak Saran, were that the prosecution had failed to make out the offence under Section 409, I. P. C. for which the appellants had been convicted and sentenced. As I am ordering a re-trial it is neither proper nor possible for the to enter into the merits of their arguments. It is not proper because any observations made by me on the merits of the case might prejudice the re-trial. And it is not possible becauseevidence' on criminal conspiracy, the offence in respect of which J propose to order a retrial, may be a likely piece of circumstantial evidence relating to the offence under Section 409, I, P. C. as well.
7. Now, the above statement of facts clearly shows that the prosecution case against the appellants, inter alia, was that there was a criminal conspiracy between the appellants to pilfer the said large sum of money. Apart from the question as to which of the two appellants, if any, had actually misappropriated the amount in question, the conduct attributed to both of them amounted to a clear allegation that both of them had made a common cause to commit the theft. That being so, on the facts as alleged a charge against the appellants under Section 120B, I. P. C. was clearly called for.
The view of the learned Sessions Judge about there having been only three possibilities, namely, that both the accused or only one of them or none of them at all may have misappropriated the money was therefore clearly wrong. There was a fourth possibility which seems to have totally escaped the attention of the learned Sessions Judge, and that was that, irrespective of whether the money in question had or had not been misappropriated by any of the appellants, there may have been a criminal conspiracy between them to misappropriate the money. If there was any such criminal conspiracy, the appellants should be punished for that offence even though the charge in respect of the substantive offence of theft or criminal breach of trust may not be brought home to them.
8. The recent English case of R. v. Newland, (1954) 1 QB 158 (A), brings out clearly the distinction between the offence of criminal conspiracy and any other offence for which the accused may, on certain given facts, be charged. It was the Government's policy, in pursuance of the export drive, that decorated pottery was only meant for export, and this policy was sought to be implemented by promulgating the Domestic Pottery Orders. The Orders however banned export only by manufacturers and persons holding export certificates. The defendants, who were charged with a conspiracy resulting in decorated pottery worth 70,000 intended for export being diverted to the home market, did not come under the mischief of the aforesaid ban since they were neither manufacturers nor holders of export certificates.
It appeared however that they had obtained the pottery in question from manufacturers by falsely representing to them that the same was required for export. The defendants were not allowed however to take advantage of the loophole which they had found in the Statutory Order for, although they could not be punished under that Order, they were punished for conspiracy. The importance of the law relating to conspiracy is that it enables the conspirators to be prosecuted and punished even though they may not have actually done any thing in pursuance of their conspiracy, where the agreement is to commit an offence. In other words, an act may be a crime when done by two though not so when done by an individual acting alone.
9. I should not be deemed from all that has gone before to be of the opinion, as indeed it is not possible for me to do so, that the appellants had committed the offence of criminal conspiracy. What I mean to convey is only this that, on the facts put forward, criminal conspiracy was certainly one of the offences which the appellants were alleged to have committed. That being so, they ought to have been charged also with the offence punishable under Section 120B, I. P. C. There can be no doubt furthermore that, where there is a charge of criminal conspiracy, the persons charged with that offence should be tried jointly.
The reason for this view is not only that conspiracy to commit offences and commission of overt acts in pursuance of the conspiracy are offences committed in the course of the same transaction within the intendment of Clauses (a) and (d) of Section 239, Cr. P. Code, so that the persons concerned may be charged jointly, but also that separate trials of those persona for the offence of criminal conspiracy would not be proper, and may even be impossible. The question of whether certain persons have or have not entered into a criminal conspiracy is capable of being properly dealt with only when the respective defences of those persons are available for consideration.
And this is possible only when all those persons stand charged with that offence in the same trial. It follows therefore that, even though joinder of charges in the case of offences committed in the course of the same transaction may be discretionary generally speaking, the discretion in favour of such joinder should invariably be exercised where the offence is one of criminal conspiracy. In view of the above, I am clearly of the opinion that there was a serious lacuna in the trial of the appellants by reason of their not having been charged with and tried for the offence punishable under Section 120B, I. P. C. That lacuna has resulted not only in the appellants not having been tried for a serious offence, but also in the offences with which they were charged not having been considered in their proper perspective. I am therefore clearly of the view that this is a fit case in which there should be a re-trial of the appellants.
10. It was submitted by the learned counsel for the appellants that it would be unfair to subject the appellants to a re-trial after a lapse of four years from the time when the offences are said to have been committed. It has however to be remembered that the appellants themselves were responsible for the present state of affairs. The omission to frame a charge under Section 120B, I. P. C. was brought about by the splitting of the case in two. And for this separation of trials Nanak Saran appellant, who made an application in that behalf, and the other appellant K. C. Kapoor who made no objection to the making of that application, were no doubt responsible.
In fact, separation of trials enured to the benefit of both the appellants to this extent in any case that it prevented their being charged with and tried for the offence of criminal conspiracy. In the circumstances, the appellants cannot well complain against a re-trial on the ground of passage of time. On the other hand, if re-trial is not ordered, an important part of the prosecution case relating to the disappearance of public money to the tune of about Rs. 10,000/- would remain unexplored.
11. Before I conclude I cannot but comment on one aspect of the case. It is a comment which does not affect the trial on merits. Irrespective of whether anybody can, or cannot, be brought to book for the offences in question, there can be no gainsaying the fact that the loss of the aforesaid large sum of public money was occasioned by reason of the Executive Engineer having acted without due sense of his responsibility. Considering that the amount involved was so large, it was clearly his duty to have personally supervised its deposit into the iron safe and to have himself kept at least one of the keys of the double lock until the money could be taken out and deposited in the treasury or the bank the following day. Instead of that he entrusted the box containing the said sum and its key to a mere clerk like K. C. Kapoor.
The distance between his bungalow, and the office where the iron safe was kept was, accordingto this officer's own estimate, only about 40 paces. When his box was brought back and K. C. Kapoor came to return its keys to him, the officer did not care even to ascertain if the money had been properly put into to safe. Inexcusable in the best of times, such irresponsible conduct was particularly blameworthy in the present conditions. To enable the Government to see whether this femissness on the part of this officer calls for any action, a copy of this; judgment will be sent to the Chief Secretary of the State.
12. The convictions and sentences of the appellants K. C. Kapoor and Nanak Saran under Section 409, I. P. C. are set aside, and it is hereby ordered that they be re-tried according to law for that offence, for the offence under Section 120B, I. P. C. and for such other offences as they may legally be charged with. The appellants are hereby directed to appear before the learned Sessions Judge of Mirzapur on 29-9-1958.