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Vaghji Nanji Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1955CriLJ1520
AppellantVaghji Nanji
RespondentThe State
Cases ReferredGurucharan Samal v. The State
Excerpt:
- - 4. the learned advocate for the appellant urged that the provisions of section 5 (4), prevention of corruption act, were mandatory and a failure to comply with them vitiated the trial, and referred to' sudhir kumar cal 226 (a), in support of this contention. pc, was bad and joint trial in respect of the criminal breaches of trust of these sums with a charge of falsification of corresponding account will be in contravention of section 234, cr. expressed the view that the technical' objection could have been overcome by the magistrate by legally framing a charge so as to comprise one offence of the criminal breach of trust for the aggregate amount alleged to have been embezzled and one offence of the entire falsification of the accounts in regard to that embezzlement......is as regards the joinder of charges. the appellant's contention is that although several items of criminal misappropriation were joined together and the accused can be charged for criminal misappropriation of the aggregate amount under section 222 (2), cr.pc each instance of criminal misappropriation wag a distinct transaction and a distinct offence and a joinder of charges of falsification of corresponding entries in the account with a charge of misappropriation of these sums even though they may constitute one offence under section 222 (2), cr.pc, was bad and joint trial in respect of the criminal breaches of trust of these sums with a charge of falsification of corresponding account will be in contravention of section 234, cr.pcin 'emperor v. manant k. mehta air 1926 bom 110 (e), the.....
Judgment:

Baxi, J.

1. The appellant has preferred this appeal against his conviction by the Special Judge, Central Saurashtra Division, of offences punishable Under Sections 409 and 477A, IPC and Under Section 5 (2) Prevention of Corruption Act, 1947. He has been sentenced to nine months' rigorous imprisonment for the offence Under Section 5(2), Prevention of Corruption Act, and to the same term of imprisonment for the offence Under Section 477A, IPC and the sentences are ordered to run concurrently, but no separate sentence was passed under a. 409, IPC

2. The appellant was the Talati of Waghapar group of villages under the Morvi sub-division. He was tried for committing criminal breach of trust in respect of an aggregate amount of Rs. 495-10-0 made up of several sums misappropriated between 1-5-50 and 30-4-51. It is held that with a view to misappropriate this amount lie had 5 erased several entries in the formel. The learned Special Judge found him guilty and the present appeal is against that order. The findings of facts by the learned Special Judge are not challenged before us in this appeal1 and the appellant's learned Advocate argued the appeal on points of law only.

3. The conviction was challenged en behalf of the appellant on two grounds, namely, that the investigation into the offence was made by the Sub-Inspector without an order of the Magistrate in contravention of Section 5(4), Prevention of Corruption Act and this irregularity vitiated the entire proceedings and consequently the appellant's conviction could not be sustained. The second objection was that the trial was vitiated by misjoinder of charges.

4. The learned Advocate for the appellant urged that the provisions of Section 5 (4), Prevention of Corruption Act, were mandatory and a failure to comply with them vitiated the trial, and referred to' 'Sudhir Kumar Cal 226 (A), in support of this contention. This - decision supports the appellant's contention. There is, however, another prior decision of the Allahabad High Court in 'Promod Chandra Shekhar v. Rex,' AIR 1951 AH 546

The view of the Allahabad High Court was that the trial was not vitiated because Die adequacy of investigation would be reflected by the evidence given fry the prosecution and it was by that evidence that the case against the accused would have to be measured, and the irregularity was therefore cured by Section 156 (2), Cr.PC This case was followed in 'Keshava Nand v. The State : AIR1952All122 . 'The Punjab High Court, in The state v. Madan Lai' , dissented from the Allahabad view and followed the decision in AIR 1953 Cal 22

It appears to us that the legality of a trial depends upon whether the Court taking cognizance of the offence had jurisdiction to do so and has nothing to do with investigation which is antecedent Lo the trial and does not form part of it. Under the Prevention of Corruption Ace the jurisdiction to take cognizance of an offence is conferred on the Court of the sanction to pro-) secure the accused granted Under Section 6 (1).

If the sanction is a proper and valid sanction the Court is invested with jurisdiction to take cognizance of the case and the fact that the investigation preceding the sanction was irregular or was conducted by an officer not properly authorised to investigate the offence will not affect the jurisdiction of the Court to take cognizance of the offence and after taking cognizance to try the accused.

In this case the sanction to prosecute the appellant was given by the Collector Under Section 6 (1) after the investigation was over and it is not the appellant's case that the sanction was improperly given. Therefore the legality of the trial cannot be questioned on the ground that the investigation was conducted by a Sub-Inspector of Police without an order of the First Class Magistrate in contravention of Section 5 (4), Prevention of Corruption Act. In : AIR1953Cal226 , their Lordships observed that investigation by a Police Officer below the rank of the Deputy Superintendent of Police without the order of a Magistrate of the first class was in contravention of mandatory provisions of the Act which should not be ignored as if it was a mere irregularity.

It is true that the provisions of Section 5 (4) are mandatory but they are in the nature of a direction to the Police and though the Police Officer) conducting unauthorised investigation may expose himself to other penalties for contravening, it, the jurisdiction of the Court to take cognizance of the offence and try it cannot De questioned. The appellant's trial was therefore legal and his decision cannot be questioned.

5. The next question is as regards the joinder of charges. The appellant's contention is that although several items of criminal misappropriation were joined together and the accused can be charged for criminal misappropriation of the aggregate amount Under Section 222 (2), Cr.PC each instance of criminal misappropriation wag a distinct transaction and a distinct offence and a joinder of charges of falsification of corresponding entries in the account with a charge of misappropriation of these sums even though they may constitute one offence Under Section 222 (2), Cr.PC, was bad and joint trial in respect of the criminal breaches of trust of these sums with a charge of falsification of corresponding account will be in contravention of Section 234, Cr.PC

In 'Emperor v. Manant K. Mehta AIR 1926 Bom 110 (E), the accused was tried at one trial for three distinct acts of miasppropriation and for corresponding three distinct falsification of accounts. The Court held that the offence of criminal misappropriation and the offences of falsification of accounts were not of the same kind and therefore a joint trial of the accused on these charges was illegal. But Fawcett J. expressed the view that the technical' objection could have been overcome by the Magistrate by legally framing a charge so as to comprise one offence of the criminal breach of trust for the aggregate amount alleged to have been embezzled and one offence of the entire falsification of the accounts in regard to that embezzlement.

In 'Gurucharan Samal v. The State : AIR1953Ori258 , the case was in respect of embezzlement of money in respect of three distinct money orders committed in different dates within the space of twelve months. A charge of criminal breach of trust of the aggregate amount was framed Under Section 222 (2), Cr.PC and was joined with three charges of forging the money order receipts and three charges of falsification of accounts.

It was held that the various criminal breaches of trust included in the charge are to be considered as one offence for the purpose of Section 234 and the offence of forgery and falsification of accounts committed to conceal the several criminal breaches of trust should be regarded as offences committed in the course of the same transaction and therefore a joinder of charges was warranted by Section 235 (1), Cr.PC

Where the accused is tried on a charge of misappropriation of money Under Section 222(2), Cr. P.C. the falsification by him of corresponding account supplies material evidence against him and the evidence of falsification of the accounts will have to be led and considered by the Court in the trial and it would be idle and vexatious to try the accused first for the misappropriation of the money and then for falsification of accounts. On the other hand a joint trial of these offences will be more convenient as the evidence in both the trials will generally be the same.

In our view the misappropriation of money misappropriated during one year which Is considered as one offence Under Section 222 (2), Cr.PC and the several acts of falsification of accounts committed to conceal) such embezzlement can be regarded as parts of the same transaction and the accused can be jointly tried for these offences Under Section 235 (1),, Cr.PC The contention that there has been a misjoinder of charges must therefore be repelled. In the result, the appeal is ordered to be dismissed and the appellant's conviction and sentence are confirmed. The appellant is ordered to surrender his bail in the lower Court.

Shah, C.J.

I agree


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