Rachhpal Singh, J.
1. Aminuddin, Ram Das, Thakur Prasad, Ram Narain, Vishnath, Sham Das, and Amuliya Charan Das, 7 appellants, were tried in the Court of the learned Sessions Judge along with three other persons under Section 120-B, read with Sections 489-A, and 489-B, Penal Code. The charge against them was that they had agreed, and conspired with one another and some other persons between 6th July 1924, and 5th October 1930 at Benares, Dundun, Calcutta and other places in British India for making and uttering forged currency notes of various series and denominations with a common object to make money by illegal means, and that in pursuance of the said conspiracy notes of ED/23, RE/55 and PE/40 series, of the denomination of Rupees 100 each, and CD/91, and OD/94 series of the de. nomination of Rs. 5 each were forged : and further negatives and blocks of Rs. 10 notes of the old pattern were prepared with a view to forge notes of that denomination. Some of the accused were further charged under substantive offences to which reference would be made when I deal with the cases of individual accused separately. All the above-named seven appellants were found guilty in respect of the charge of conspiracy. Some of them have also been held to be guilty on the substantive charges. They have all been sentenced to various terms of imprisonment, and have preferred appeals against their convictions.
2. Pandit Ram Chandar Sharma, P.W. 25, states how this case was started. He deposes that some notes of RD/23 series, and PE/40 series of Rupees 100 each were detected in two adjoining villages in. the district of Allahabad and Mirzapur, in the months of August and September 1929. Two persons Nazir, and Anwar were arrested while uttering forged currency notes in one of these villages. They were challaned and convicted in the month of November 1929. The Deputy Inspector General of the C.I.D. deputed the witness on special duty in order to discover the origin and authors of the forged notes which were being circulated. In connection with this matter the witness saw Anwar and Nazir in the Allahabad District Jail, and gathered some information. During the course of the investigation the witness gathered information about the various suspects and he' came to the conclusion that one of the centres where these false currency notes were being forged was Benares. The witness went to that place and started enquiries. He learnt that one Barku, alias Gopal Lal and several other persons had been uttering forged currency notes. The witness also learnt during the investigation that forged currency notes could be purchased on payment. One Raghbir Avasthi gave him this information and said that forged currency note of the face value of Rs. 100 could be purchased for a sum of Rs 50. On receiving this information the witness expressed a desire to purchase such notes. A forged currency note of the RD/23 series for Rs. 100 was brought to the witness by one Bachoha Maharaj. The witness made an endorsement on this note which is Ex. 2, and purchased it on 4th December 1929 for Rs. 50 which he paid. The price of this was debited to the account of the Government.
3. On account of certain information received in the course of enquiries, the witness had reason to suspect one Ram Narain as an utterer of forged notes. He sought the help of one Bal Kishan in order to get in touch with these men, Ram Narain and Barku. He deposes that after a few days Bal Kishan brought Ram Narain, accused, to him, who praised the forged notes very highly as being very clever specimens of the genuine notes. There were some negotiations and eventually Barku and Ram Narain went to the witness who was posing as a zamindar of Patna, and who was anxious 'to get rich quiok.' It was given out that the witness would be ready to purchase forged notes for about Rs. 20,000. He asked Ram Narain and Barku whether they had a specimen with them, upon which Ram Narain pointed towards Barku who took out a note of Rs. 100 and showed it to the witness. This note according to the statement of the witness was of ED/23 series, and was for Rs. 100 and was forged. The price demanded by Barku for this note was Rs. 50, but the witness offered him Rs. 25. There was some higgling as regards the price, but the matter could not be settled and was postponed. On 21st December 1929, the witness again met Bal Kishan who told him that Barku and Ram Narain had given one false currency note to one Rahmatullah in payment of the price of a sari. The witness went to Rahmatullah and saw the forged note which had been given to him. It was Ex. 3, and is of ED/23 series. The witness got a written report about this matter from Rahmatullah, which is P-47 dated 21st December 1929. The witness took possession of the note and gave information to his superior officers about the matter. The enquiry dragged on for several months.
4. In the beginning of October 1930 the witness received information that Vishnath, accused, and Aminuddin, accused, Ram Das, accused, Sham Das, accused, and Beni Madho, approver, dealt in false currency notes. The witness went to Mr. Nott Bower, Assistant to the D.I.G., Criminal Investigation Department, and told him about these matters, and expressed a issue that attempts should be made to purchase two such notes from Aminuddin. A sum of Rs. 50 was sanctioned for the purpose. Five notes of Rs. 10 each were given to the witness, and they were marked and initialed by Mr. Nott Bower. Their numbers were also noted. This happened on 2nd October 1930. On 5th October 1930, Vishnath, witness, met him and the witness gave him the above mentioned five notes with a request that two false currency notes of ED/23 series of Rs. 100 each should be purchased from Aminuddin. The witness himself initialed these notes which had been given to. Vishnath. Vishnath brought to him two-false currency notes which are Exs. 7 and 21, and said that they had been purchased from Aminuddin through Vishnath, accused. Then the witness issued a search warrant for searching the house of Aminuddin to Babu Harnam Singh, a Sub-Inspector of Benares. The house of Aminuddin was searched that very day (5th October 1930). According to the evidence of the witness four false currency notes of the value of Rs. 100 each of ED/23 series, along with four out of the five genuine notes of Rs. 10 each which the witness had given to Vishnath, accused, for purchasing two false currency notes, were recovered at the house of Aminuddin who was taken in custody.
5. After this simultaneous searches were made on 9th October 1930 at the houses of Ram Das, Sham Das, accused, Beni Madho, approver, Mt. Kali Dasi, a mistress of Amuliya Charan Das, at whose house Amuliya Charan Das lived. The witness himself conducted the search at the house of Bandu where Amuliya Charan Das lived as a tenant, and from inside a box blocks, negatives, and effigy of the King, and several other articles used in making forged notes were recovered. Beni Madho, approver, after his arrest, gave certain information to the police with the result that at a particular place in the Ganges river a bundle containing blocks for the preparation of forged currency notes and various other articles were recovered by the police. When the house of Mt. Kali Dasi was searched among other articles two telegrams were recovered to which a reference will be made later on at the proper place. Later on as a result of the investigation the above-mentioned accused persons and others were all arrested and the case was challaned sometime in April 1931. It may be remarked that Barku was one of the accused persons in the case. He was on bail. On the date on which the Magistrate who held an enquiry in this case committed the accused to take their trial in Sessions, Barku committed suicide.
6. This is the brief history of the case. One of the points taken up by the learned Counsel appearing for the appellants was that the whole trial was ultra vires because the sanction of the Local Government had not been taken for starting a case on a charge of conspiracy against the accused persons. Before we proceed further it is necessary to give a finding on this question, because if the trial was illegal on account of the want of sanction it would be useless to go into other questions involved in the case. Section 196-A, Criminal P.C., runs as follows:
No Court shall take cognizance of the offence of criminal conspiracy punishable under Section 120-B, I.P.C. (1). In a case where the object of the conspiracy is to commit an illegal act other than an offence, or a legal act by illegal means, or an offence to which the provisions of Section 196 apply, unless upon complaint made by order or under authority from the Governor-General in Council, the Local Government or some officer empowered by the Governor-General in Council in this behalf; or (2) in a case where the object of the conspiracy is to commit any non-cognizable offence, or a cognizable offence, not punishable with death, transportation or rigorous imprisonment for a term of two years or upwards, unless the Local Government, or a Chief Presidency Magistrate or a District Magistrate empowered in this behalf by the Local Government has, by order in writing, consented to the initiation of the proceedings Provided that where the criminal conspiracy is one to which the provisions of Sub-section 4, Section 195 apply, no such consent shall be necessary.
7. In the case before me admittedly no sanction for the starting of the conspiracy case was taken. The question for consideration is whether the contention put forward on behalf of the defence is well-founded. I have not the least hesitation in saying that it has no foundation whatsoever. There is nothing in the provisions of Section 196-A, Criminal P.C. under which it was necessary for the prosecution to obtain sanction before starting the case. A sanction is necessary in the following cases:
(1) Where the criminal conspiracy is to commit an illegal act other than an offence, or a legal act by illegal means. This does not apply to the case before us. The prosecution did not allege that the criminal conspiracy, subject matter of the charge, was to commit an illegal act other than an offence, or a legal act by illegal means. (2) Where the conspiracy is to commit an offence to which the provisions of Section 196 apply. This has no application to the case before me. (3) Where the criminal Conspiracy is to commit any non-cognizable offence. This also does not apply. (4) Where the conspiracy is to commit a cognizable offence not punishable with death, transportation or rigorous imprisonment for a term of two years or upwards. This too has no application to the present case. Here according to the prosecution, the criminal conspiracy was to commit a cognizable offence punishable with imprisonment for a term on more than two years. It is therefore perfectly clear to me that where the charge of criminal conspiracy to commit a cognizable offence, which is punishable with death, transportation, or rigorous imprisonment for a term of two years or more, no consent of the Local Government, etc., is necessary. I therefore hold that the contention of the appellant that the trial was illegal because no sanction of the Local Government was obtained is untenable. The next contention raised on behalf of the appellants is that as some of them have been acquitted by the Jury in respect of some of the charges framed against them, the learned Judge of the Court below was wrong to take into consideration the evidence disbelieved by the Jury in determining whether or no the charge of the conspiracy wag proved against them. It has already been stated that all the accused persons had been charged with the commission of the offence of conspiracy. In addition to that, some of them were further charged with having committed offences in pursuance of the objects of the conspiracy. In respect of the charge of conspiracy the trial was held with the aid of the assessors, and about other charges the trial was with the aid of the Jury. The Jury held that the other charges were not proved against some of the accused. Though the learned Judge did not agree with the verdict of the Jury, yet he did not refer the case to the High Court under the provisions of Section 307, Criminal P.C. but acquitted the accused in respect of those charges. But in deciding the case as regards the conspiracy charge, he has used the evidence against these accused, which was not believed by the Jury. The defence contention is that this course was not legal. I proceed to consider this question.
8. It is quite clear to me that if a man is acquitted on a particular charge then at a subsequent trial for conspiracy the evidence produced against him at the former trial Court be admitted to prove a charge of conspiracy against him. In Pulian Bihari Das v. Emperor (1912) 13 Cr.L.J. 609, it was laid down that a judgment of not guilty against an accused person fully establishes his innocence and the incident in respect of which the charge was brought cannot be used against the acquitted person in a subsequent trial for conspiracy. It however does not necessarily follow that an accused person let off at a formal trial in respect of an offence committed in furtherance of the objects of a criminal conspiracy cannot subsequently be charged for the offence of conspiracy. In the above cited case the Calcutta High Court held that
the fact that proceedings for participation in a dacoity against certain individuals were dropped owing to insufficiency of evidence does not preclude a charge of conspiracy in respect of that dacoity from being brought against the same persons and others, for the criminality of a conspiracy is distinguished from, and is independent of, the criminality of overt acts.
9. The reason is that in certain cases it will not be possible for the prosecution to prove that a particular person committed a crime which was the object of the conspiracy and yet convincing evidence may be able to show that the parson was guilty of the conspiracy. In my opinion, there is nothing in the Indian Law to prevent an acquitted person, after his acquittal for a particular offence, from being charged with an offence of conspiracy; only the evidence on which he has been acquitted cannot be received at a subsequent trial on a charge of conspiracy. The question for consideration is whether the view mentioned above can help the appellants. In my opinion, it does not. In the case before me, the prosecution 'does not attempt to use any evidence against the appellants taken at any previous trials of any of the accused, at which they were acquitted. The facts of the case before me are totally different. Here at one trial the accused persona were charged with conspiracy and some other offences said to have been committed in the furtherance of the object of the conspiracy. The charge was perfectly correct. Accused persons may be charged at one trial with the offence of conspiracy and also with the offence alleged to have been committed in pursuance of the conspiracy because the substantive offence of conspiracy and the offences committed in pursuance thereof form one and the same transaction. Such a joint trial is permissible under the provisions of Section 239, Criminal P.C. In Abdul Salim v. Emperor A.I.R. 1922 Cal. 107 ten persons were put on their trial on a charge of criminal conspiracy against them and on separate charges against each of them individually. Eight of the accused persons were convicted of the general charge of conspiracy under Section 120-B/420, Penal Code, and these eight and others were convicted on one or more charges framed against them individually. Objection was taken to the charge as being bad on the ground that it was a charge of 22 different offences and not of a single offence. The Court repelled this contention, and made the following observations:
There would be a great force in this contention if the law were the same now as it was when that case, Amrita Lal Hasra v. Emperor A.I.R. 1916 Cal. 107, was decided. Then conspiracy to commit an offence (except a conspiracy to wage war) was punished only as an abetment of an offence. Now that the law has been altered; these arguments lose their force. In the present case the accused were charged with the offence of conspiracy, and the acts of cheating referred to in the charge and the schedule annexed thereto are not charged as offences, but were set out as acts done in pursuance of the conspiracy It was open to the prosecution to prove such acts in order that from them the existence of the conspiracy might be inferred.
10. The Court also remarked that the fact that an accused person has been acquitted of a conspiracy charge, does not operate to show that the other offences with which he was charged were not part of the same transaction with the other offences charged at the trial, and vitiate the trial. Legality of the joint trial depends on the accusation and not on the result of the trial. The charge of conspiracy was triable with the aid of, assessors while the other charges were triable with the aid of Jury. Section 268, Criminal P.C. enacts that all trials before the Court of Session shall be either by Jury, or with the aid of assessors. Where there is a trial by Jury the Jury is the real tribunal, and is aided by the Judge in certain matters. On the other hand, in a trial with the aid of assessors the Judge is the sole tribunal. Section 269, Criminal P.C. lays down that
where an accused person is charged at the same trial with several offences of which some are and some are not triable by jury, he shall be tried by jury for such of those offences as are triable by jury and by Court of Session with the aid of assessors for such of them as are not triable by jury.
11. In such cases at the conclusion of the trial the Court first takes a verdict of the Jury, and then the opinion of the Jurors as assessors. After the verdict of the Jury the Court takes their opinion as assessors and then gives its judgment as regards the charge tried with the aid of the assessors. It will often happen that the Judge, so far as the charge triable by him with the aid of assessors is concerned, will have to take into consideration the same evidence which has been believed or disbelieved by the Jury, and base a conviction or acquittal on that very evidence. The question which I have to decide is whether this course is open to him or not. In my opinion the Judge is perfectly competent to adopt this course. In Rameshchandra Banerji v. Emperor A.I.R. 1914 Cal. 456, it was held that there was no provision in the Code of Criminal Procedure justifying interference with a conviction on the ground of repugnancy in the record. Certain observations made by Beachoroft, J., in this case at pp. 374, 375 (of 41 Cal.) may be quoted here because they are pertinent to the question which I am considering:
Now the tenancy of modern legislation in general and of the Criminal Procedure Code in particular is to avoid technicalities, and I am aware of no provision in that Code which would jurtify interference with a conviction on the ground of repugnancy in the record. An instance will make it clear that repugnancy in the verdict of a jury in India is not itself sufficient to justify the quashing of a conviction, and to any one with much experience of mofussil jury it will be evident that such repugnancies do occur. Suppose six persons are charged under Section 147 with rioting and under Section 304 read with Section 149 in respect of culpable homicide committed in the course of a riot. The jury convicts all six persons under Section 147, but convicts only three of the charge under Sections 304 and 149, acquitting others of this charge. They do this arbitrarily to distinguish the case of ring-leaders from those who took a less prominent part. The Judge considers that he can give a sufficient sentence in regard to the latter three, though he does not agree with the verdict. He cannot, therefore, refer the case under Section 307, for it is not necessary for the ends of justice to do so. Nor on appeal could this Court interfere on the ground of repugnancy, for under Section 423, Sub-clause 2, it could interfere only on the ground of misdirection by the Judge or misunderstanding by the jury of the law, and if both of these elements are absent in the case supposed, it is no answer to say that such verdicts ought not to have been given, for the fact remains that they are.
12. I find myself in agreement with this view. I may add that the view taken by Beachcroft, J., was approved in another ruling of the Calcutta High Court, Manindra Ghandra Ghosh v. Emperor A.I.R. 1914 Cal. 886. It would seem that in the case before me the learned Sessions Judge adopted the course indicated by Beaohcroft, J., in the above mentioned instance given by him. He was of opinion, that the verdict of the Jury was not correct in respect of the minor charges; but he thought that as he could deal adequately with the guilty persons in respect of the charge of conspiracy he did not refer the case under Section 307 to the High Courb. I am opinion, that so far as the charge tried with the aid of assessors is concerned the Sessions Judge being the sole judge of facts and law is entitled to take into consideration the entire evidence produced in the case in order to decide as to whether or not the charge is brought home to the accused. He is not fettered in any manner by the opinion of the Jury expressed in respect of the charges triable by the Jury, for the simple reason that the charge with which the Judge is dealing was not triable by Jury at all, and so their opinion about the evidence so far as that charge triable by the Judge alone with the aid of the assessors was concerned is in no way binding on the Judge. If the contention of the appellants were accepted it would mean that where on a minor charge with the aid of a Jury, the Jury disbelieves evidence then the Judge is not competent at all to proceed with the trial relating to the other charges which he alone is competent to try with the aid of assessors because according to the appellants' contention he would be deciding the question of the guilt or otherwise of the accused person on the same evidence which has been disbelieved by the Jury while dealing with the case relating to the minor charges. This cannot be the law.
13. It may at once be conceded that the result of such joint trials sometimes may create anomalous and somewhat absurd-positions. Suppose a man is charged with two offences, one triable by Jury and the other triable by Judge with the aid of assessors. Both the charges have to be decided on exactly the same evidence. If there is disagreement between the Judge and the Jury curious results follow. On the one side we have the verdict of the Jury, who hold that the evidence is not true, and therefore, the minor charge is not proved. On the other hand we will have the decision of the Judge in respect of the major charge triable with the aid of the assessors in which he holds on the same evidence that the case is fully established. But so long as the law is not changed such results are likely to happen in many cases. However, on a consideration of the question I feel satisfied that it is within the competence of the Sessions Judge, in a case where the accused persons are being jointly tried by Jury, and by the Judge with the aid of assessors, to take into consideration the entire evidence produced in the case in dealing with the charge triable by him with the aid of assessors, in spite of the fact that that evidence may have been disbelieved by the Jury who were dealing with the minor charge. So far as the case relating to the charge triable by the Judges with the aid of assessors is concerned, he is the sole judge of the facts, and so far as that charge is concerned the opinion of the Jury does not count.
14. Having disposed of the legal and technical points taken by the learned Counsel for the appellants I now proceed to consider the important question whether the charge of conspiracy has been proved by the prosecution. The most important witness in the case is Beni Madho approver. He is P.W. 2 in the case. His evidence is that there was a conspiracy, the object of which was to prepare forged currency notes, and that most of the accused were members of this conspiracy. The most important question for consideration in the case is whether the evidence of the approver has been corroborated by other independent and reliable evidence produced in the case by the prosecution. The evidence produced in the case has been very carefully and critically considered by the learned Sessions Judge in his elaborate, careful and excellent judgment. After hearing the learned Counsel on both the sides I am of opinion that there is ample evidence on the record which satisfactorily proves the existence of the conspiracy. It appears from the statement of Beni Madho, approver, that both he and Ram Das, accused, were fairly well-to-do and prosperous men of business till 1919-20, when both of them got into financial difficulties, and then Ram Das proposed the hazardous, yet profitable business 'of getting rich quick.' The approver was shown a five-rupee note, and was told that a friend of Ram Das had prepared it, and it was suggested by Ram Das that if the approver invested some money the business would be very profitable.
15. The result of this conversation was that the approver was introduced to Sham Das, accused. The next step was that the approver asked Sham Das to introduce him to the man who made blocks so that they may know the estimated cost. Then Amulya Charan Das, accused, was introduced to the approver by Ram Das, accused, and then the approver was told that about one thousand or eleven hundred would be required for investing in the business, and it was agreed that notes of the denomination of Rs. 10 each of the latest pattern should be prepared. A genuine note of Rs. 10 was given to Amulya Charan Das. Amulya Charan Das eventually prosuced a glass negative of a note of Rs. 10 of the latest pattern, which was shown to the approver. Four hundred rupees were obtained by pawning some ornaments belonging to the approver to purchase materials required for printing and the preparation of the notes. The evidence of the approver is that Rs. 100 were given to Amulya Charan Das for purchasing some materials and Rs. 50 for his expenses, and he was directed to go to Calcutta to purchase the same. Then the preparation of false currency notes started in right earnest. Ram Das, it would also appear from the evidence of the approver, invested a fairly large sum which he borrowed at Lucknow by pawning ornaments. Forged currency notes were prepared and were circulated in the market through the agencies of various persons, and this went on till the various accused were arrested. On the question of existence of conspiracy the evidence of the approver is very thoroughly corroborated on material points. A printing press was discovered on his information. False currency notes were recovered from the house of Aminuddin, accused, at the time of a search made there. A parcel containing blocks, negatives and other articles was recovered in a bundle lying in the Ganges on the information of the approver. From the house rented by Amulya Charan Das as a tenant a box was recovered containing negatives, blocks and various other articles for the preparation of making forged currency notes. The evidence of the question of conspiracy is voluminous, and it will be useless waste of time to refer to it here. It is enough to say that the existence of the conspiracy was not seriously challenged by the learned Counsel appearing on behalf of the appellants. All that they vehemently and strongly argued was that their clients had not taken part. With this aspect of the case I will deal later on. I have no hesitation in holding that the existence of the conspiracy for the preparation of false notes is fully established. It is proved beyond any doubt that forged currency notes were prepared and circulated in the market. All that is now necessary is to consider the cases of the various accused separately, and I proceed to do so. (His Lordships then considered the cases of several accused separately and proceeded). For the reasons given above the appeals of Aminuddin, Amulya Charan Das, Ram Narain, Ram Das and Shiam Das are dismissed. The appeals of Vishnath and Thakur Prasad Singh are allowed, their convictions are set aside, and they are acquitted and shall be set at liberty. If any of the accused whose appeals have been dismissed are on bail, they will surrender and serve the sentence imposed upon them.