1. Though these two rules raise certain points of law for our consideration, from the practical point of view they are concerned with the sentences which have been inflicted upon the two petitioners. Jagadish Prosad Basu was the Secretary of the Co-operative Central Bank. Satya Dayal Basu was the Assistant Secretary. It appears that between them they have successfully embezzled a large sum of money. Generally speaking the modus operendi was that, when deposits were sent from other central banks, the two petitioners diverted the money into their own pockets instead of crediting it to the accounts of their own bank. The police held an investigation into the matter and they submitted one charge sheet. The offences alleged were conspiracy to commit criminal breach of trust and also specific charges with regard to definite sums of money. When the case came on for trial the prosecution, in spite of the protest of the defence, split up the case to be tried into four separate trials. In the first trial, Jagadish Prosad Basu was given three years under Section 409, I.P.C. He was also convicted of conspiracy. No separate sentence was passed upon him. In the second trial, he had been given two years under Section 409, I.P.C. No separate sentence for conspiracy was passed upon him. Satya Dayal Basu was given three years under Section 409 in the first trial and four years in the second trial. No separate sentence was passed upon him on the conspiracy charge.
2. Now, although the two petitioners have been twice successfully convicted of conspiracy, no sentence has been passed upon them. The simple reason is that the actual offence has been brought home to them. In this case the trial of a conspiracy charge was a mere waste of time. It is important, however for these rules to note that the contention made on behalf of the petitioners is that when once they have been convicted of it they cannot be tried all over again. It is obviously commonsense to suppose that if the petitioners conspired, they did so in order to embezzle money. But the prosecution in the first trial alleged a separate conspiracy to embezzle a particular sum of money. In the second trial, they went a little further and alleged a separate conspiracy to embezzle money coming from a certain bank though it made no difference to the two petitioners where the money came from. We have no doubt that in framing these charges, the prosecution entirely lost sight of the real nature of the ease, but on a technical ground it must be said that the two conspiracies of which the petitioners have been found guilty are not the same; but it is really so impossible to distinguish them that if different sentences had been imposed, we should most certainly have made them concurrent.
3. The second ground on which the rules were issued was misjoinder of charges. There were 19 items of embezzlement tried together. But the prosecution case was that these offences were committed in pursuance of the conspiracy as alleged in the first charge. On behalf of the petitioners it was argued that the charge of conspiracy was a mere dodge to enable a large number of offences to be tried together in contravention of the provisions of the law, but inasmuch as the petitioners have actually been found guilty of conspiracy, it is impossible to say that the charge was a mere dodge. There remains the question of sentence. We cannot imagine a more harassing method of proceeding with the prosecution than that adopted in this case. Three items might have been selected as the subject-matter of separate charges. Then it would have been possible upon a verdict of guilty to impose a sentence that would be sufficient. There would then have been no necessity for proceeding with the trial of any more charges. We entirely disapprove of this method of proceeding with an indefinite number of trials and imposing sentences to take effect one after the other. We accordingly direct that the sentences of imprisonment imposed in these cases be concurrent with those imposed at the former trial. The sentences of fines imposed remain intact. We accordingly make the rules absolute to this extent.
4. I agree and desire only to say that I am perfectly satisfied upon an examination of the materials placed before us at the hearing of these rules that the prosecution had no jurisdiction whatsoever for splitting up the charges in the way adopted. As my learned brother has already pointed out, the charge-sheet submitted by the police before the prosecution was launched and which was presumably the result of a thorough investigation by the police seems to have made out a case of persistent defalcation by the two petitioners acting in concert. In my judgment, at that point of time the prosecution should have decided whether they were going to proceed against the petitioners for conspiracy or not. In the event of the prosecution deciding that a charge for conspiracy was not appropriate, they could have picked out three items from among the number of defalcations of which the petitioners were accused. In a trial upon three such charges it would undoubtedly have been open to the prosecution to lead evidence relative to the other items for the purpose of proving system. If however at that point of time the prosecution had decided that it was necessary to frame a charge of conspiracy at all, they should, in my opinion, have framed one such charge covering all the items of defalcation which had been discovered up till then. The policy of splitting up the charges and the trials in the manner which was adopted in this case is, in my judgment, contrary to good sense and unfair to the accused persons.