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Rahim Bux Sarkar Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1930Cal717,129Ind.Cas.359
AppellantRahim Bux Sarkar
RespondentEmperor
Cases ReferredEmperor v. Ibrahim Khan
Excerpt:
- .....it is to be observed that that section relates to a number of offences of the same kind whether charged in respect of the same person or not, whereas section 222 relates specifically to a charge of the kind with which we are now concerned. the object of that section is to ensure that the accused may have as full particulars as possible of the accusations made against him; and in sub-section (1) it provides that the charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom or the thing (if any) in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged. to put the matter in other words, it provides that all reasonable information shall be given as.....
Judgment:

Costello, J.

1. In this case the appellant Rahim Bux Sarkar was charged under Section 408, I.P.C., for having committed criminal breach of trust as a servant and he was sentenced to four years rigorous imprisonment and to pay a fine of Rs. 1,000 in default of payment of which he was to undergo a further term of one year's imprisonment. The main point urged before us is that the form of the charge is bad in law as being contrary to the provisions of Section 234, Criminal P.C. The facts are that the accused had been employed as a supervisor under the Pabna Central Bank to which there were affiliated various rural co-operative societies in police stations Pabna and Sujanagar and the charge against him is that between November 1925 and October 1926 he at various places within the jurisdiction of the police stations at Pabna and Sujanagar, being a servant in the employment of the Pabna Central Co-operative Bank, Ltd. and being entrusted as such servant with the duty of realising for and crediting to the said bank the debts due to the said bank from various co-operative societies within the said jurisdiction committed criminal breach of trust in respect of Rs. 7,745-12-0 which he realized from rural societies on behalf of the said Central Bank in various sums as shown in some 38 exhibits and that he wrongly misappropriated the same without crediting the said amounts to the Pabna Central Bank. It appears that on the report of an auditor by name Bhhujanga Bhusan Maitra dated 25th December 1926 the police took up the case but the accused was not to be found until 26th November 1928 when he was arrested in Calcutta. The defence put forward was that the whole matter was a false prosecution, that he never had any written or verbal directions that he should realize money from the village societies and credit the same to the Central Bank, that the exhibits on which the prosecution was based were all forged and that the secretaries of the rural societies combined against him because he enforced certain duties on them. He explained his disappearance by saying that he had gone to Calcutta by reason of some illness. The objection taken by Mr. Huq is, as I have already stated, to the form of the charge and that is the fact that the prosecution specified not only the gross sum said to have been misappropriated but also the items of which that sum was made up. Mr. Huq argues that Section 234, Criminal P.C., controls the provision of Section 222. Section 234 provides:

When a person is accused of more offences than one of the same kind committed within the space of 12 months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with and tried at one trial, for any number of them not exceeding three.

2. It is to be observed that that section relates to a number of offences of the same kind whether charged in respect of the same person or not, whereas Section 222 relates specifically to a charge of the kind with which we are now concerned. The object of that section is to ensure that the accused may have as full particulars as possible of the accusations made against him; and in Sub-section (1) it provides that the charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom or the thing (if any) in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged. To put the matter in other words, it provides that all reasonable information shall be given as to enable the accused person to know the nature of the charges he has to answer. Sub-section (2), which is the one material in the present case, in a sense is a qualification of the general proposition contained in Sub-section (1) because it says that 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 alleged to have been committed and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 234. It is obvious from the language of that section that in a case of charge of the character mentioned in the subsection the necessity for particularity is cut down in that it provides that it is sufficient for the prosecution merely to specify the lump sum without stating the particular items of which it is made up, provided that the lump sum is said to have been misappropriated within the space of one year. In the case now before us the prosecution so far from confining themselves to their exact rights as given in the subsection went out of their way to give more than what the subsection requires. That is to say, not only was the gross sum specified but also the several items of which it is composed. Mr. Huq argues that that was an embarrassment and would prejudice the accused. It is obvious that so far from that being the case, the giving of particulars was an advantage to the accused and not the reverse. This matter has been before this Court on previous occasion and it wag not really open to argument. The case of Samiruddin Sarkar v. Nibaran Chandra Ghose (1904) 31 Cal. 928 is exactly in point. The head-note is as follows:

Where an accused parson was charged under Section 408, Penal Code with having committed original breach of trust in respect of a gross sum of money misappropriated by him within the period of one year and the charge not only specified the gross sum taken and the dates between which it was taken, but also set out the items 22, in number composing such gross sum giving the dates and the amount alleged to have been misappropriated on each date : Held, that the charge came within the provisions of Clause 2, Section 222, Criminal P.C., and that by specifying the items composing the gross sum the charge went beyond what was necessary and was to that extant favourable to the accused.

3. This case followed the previous case of Emperor v. Gulzari Lal (1902) 24 All. 254. The matter has not only been4 considered by this Court but has also come before other High Courts. In 1906 in the case of Thomas v. Emperor (1906) 29 Mad. 558 it was held that Section 222, Criminal P.C., does not apply only to cases where there is a general deficiency and the prosecution is unable to specify the particular items of the deficiency but also the cases where the items may be, but are not, specified. In other words, if the prosecution are in a position to specify the items which show exactly how the gross sum is made up, they can either content themselves by putting the gross sum without any further detail or they can if they wish go beyond what the section requires them to do and specify the items of which the amount is composed. It has been pointed out by the Court in the case just mentioned that

if the legislature intended only to apply Section 222 to cases where there is a general deficiency in an account and the prosecution is unable to specify the particular items of the deficiency, it could have found apt words in which to express the intention. The words used do not contain any such limitation and we are not justified in reading into the section a limitation which its language will not support.

4. The same point was before the Allahabad High Court in 1910 in the case of Emperor v. Ibrahim Khan (1911) 33 All. 36 where a similar decision was arrived at. It seems to us therefore that the point raised by Mr. Huq is not open to question.

5. In this particular case it is to be regretted that the learned Judge put his judgment in the form in which we find it. He had previously asked the jury what their verdict was in these terms:

What is your verdict in respect of the charge under Section 408, I.P.C., and laid against the accused on the 38 items set forth in the charge

5. Thereupon the foreman said:

Our unanimous verdict is that the aooused is not guilty in respect of 3 items viz., Exs. 25(6), 25(7) and 25(8), but that he is guilty under Section 408, I.P.C., in respect of the remaining 35 items.

6. And then the learned Judge in passing the sentence in respect of the 35 items which he mentioned says:

the accused Ibrahim is convicted under Section 403, I.P.C., and sentenced to rigorous imprisonment for four years. The accused stands acquitted in respect of the 3 items Exs. 25(6), 25(7) and 25(8).

7. The form in which that was expressed seems to suggest that the misappropriation of each item constituted a separate offence. It is perhaps by reason of that that Mr. Huq was able to light upon what might be a good point of attack in this appeal. At first sight that may seem to be covered by Section 234. But it is obvious from an examination of the whole case that that is merely a question of form and not of substance because the charge against the accused was primarily of misappropriation of the total sum of Rs. 7,745-12-0. The right way of looking at it is that the prosecution charged him with having misappropriated a specified sum of money. It would have been sufficient for the Judge to have asked the jury 'what is your verdict in respect of the charge under Section 408? Is the accused guilty or not,' without requiring the jury to specify the items for which they convicted him. However it is clear to us that it in no way prejudiced the accused; and we are satisfied that there is nothing in the suggestion made. The summing up is perfectly clear and quite intelligible to the jury. That being so, this appeal must be dismissed.

Suhrawardy, J.

8. I agree.


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