1. This case comes before us on reference by the learned Sessions-Judge of Jalpaiguri, and also on a rule, issued by this Court in revision. The material facts are shortly as follows: On 6th June 1936 a shareholder of the Kohinoor Tea Co. of Jalpaiguri sent a complaint against the directors of the Company to the Deputy Inspector General, C. I. D. at Calcutta. The police investigated his allegations, and reported that nine persons including the directors of the Kohinoor Tea Company, the Bengal Dooars Tea Company, the Arya Bank and the Nor. them Tea Company were members of a criminal conspiracy during the years 1930.35 to commit cheating and criminal breach of trust, and that in pursuance of this conspiracy they actually committed various such offences. The report goes on to enumerate specific offences under these sections in respect of money, committed during those years, and also one ease of offences under Sections 380, 409 and 411,I.P.C., in respect of green tea, for which purpose forgery and falsification of accounts were also committed. The police accordingly submitted charge sheet against these nine persons and the Local Government sanctioned their prosecution under Section 196-A (2) Criminal P. C, in respect of an offence under Section 120-B, I.P.C. read with Sections 380, 411, 409, 420, 468, 109, 477-A, I.P.C. and Section 282, Companies Act. It may be mentioned here that the police report, after asserting in its first paragraph the existence of a conspiracy, does not go on to mention any facts which would indicate that all the alleged offences were committed in pursuance of one conspiracy and one only. The Public Prosecutor opened the case on 8th February 1937, and in his opening address, so the Magistrate says, 'hinted at the formation of groups of accused, but made no attempt at the grouping of evidence'.
2. A month later, while the examination-in-chief of the prosecution witnesses was proceeding all the accused filed petitions objecting to their joint trial. On these petitions the Magistrate passed the following order:
The legality of a joint trial depends on the allegation made and not on the result of the trial as held in many reported oases including the Electricity Theft Case. Until I have come to the stage of framing charges, I cannot finally decide anything. The point will be discussed in the judgment if a charge of conspiracy is framed.
3. By 10th April the evidence of 55 prosecution witnesses had been recorded, and the Magistrate adjourned the case. On 12th April the following order was passed:
Public Prosecutor not ready. I have gone through the evidence and find that in order to avoid probable prejudice to the accused persons by a misjoinder of charges it is desirable that the case should be split up into separate ones against, groups of accused and separate trials held. The learned Public Prosecutor is accordingly requested to come prepared on 19th April 1937 with draft charges against each group of accused in the light of the above order.
4. On 19th April draft charges were submitted by the Public Prosecutor and the following order was passed:
Draft charges scrtinized. Akhil, Rabindra, Ramdin, Ramananda, Prafulla, Dwijen and Nripendra will be tried in one group (hereafter called the money group for the sake of abbreviation), while Akhil, Prafulla, Manindra and Abu will be tried separately in another group (hereafter called the tea group for the sake of abbreviation. Charges framed against the money group. The result is that evidence will have to be taken de novo against the tea group, as all the evidence admissible against the money group will not be admissible against the tea group also. As no grouping of evidence was done previously, the de novo trial of the tea group cannot be avoided now.
5. On this the four accused who form the tea group moved the Sessions Judge who has made the present reference, recommending that the order directing a de novo trial of those four parsons be set aside, as not being warranted by any section of the Criminal Procedure Code. At the same time, on the petition of four members of the so called money group, (No. 1 being common to both) this Court issued a rule on the Deputy Commissioner of Jalpaiguri to show cause why the proceedings should not be quashed. We have beard the rule and the reference together, and dispose of both in this judgment. The rule, as I have said, was issued at the instance of four members of the money group, whose grievance is against the charges already framed against them. Petitioners 1, 2 and 3 are Directors and petitioner 4 was employed as an Inspector of the Kohinoor Tea Co. It is said that there has been misjoinder of charges, and that the charges are too numerous and embarrassing. It is necessary to see what are the charges that have been framed against them. There is in the first place, one charge of conspiracy against all seven members of the group to commit criminal breach of trust and cheating. Then there are seven specific charges against No. 1, Akhil, all of acts of criminal breach of trust or cheating, said to have been committed in pursuance of the said conspiracy during the said period of five years. The specific offences charged against No. 2, Ramdin, are the same as six out of the seven charged against No. 1. The specific offences charged against No. 3, Ramananda, are the same as those against No. 2. There are only two such charges against No. 4, Rabindra, corresponding with the 1st and 7th against No. 1. Of the three accused in the money group who have not joined in the petition for revision, there are seven specific offences charged against Prafulla, the same as those against No. 1 Akhil. There are three against Dwijendra and one against Nripendra, each corresponding to specific charges against petitioner No. 1. Thus the charges relate to seven specific offences in all, all of them either cheating or breach of trust, and all are charged as committed in pursuance of the one conspiracy.
6. If this is the prima facie effect of the evidence, then there is no misjoinder. Whether there is really prima facie evidence of one conspiracy, and one only is a question which can only be answered after an exhaustive analysis of all the evidence, oral and documentary on the record, which is not only impossible for us to undertake, but is outside our province. The Public Prosecutor and the Magistrate are of opinion that that is the effect of the evidence, and charges have been framed accordingly. The prosecution have undertaken to prove that the offences charged were committed in pursuance of a single conspiracy, that is in the course of a single transaction lasting for five years. The charges therefore are not contrary to law. The question remains whether the charges are so numerous and embarrassing as to prejudice the petitioners in their defence. We are satisfied that they are not. The petitioners are represented by lawyers and we see no reason why the number of charges which is not very great, should be a source of embarrassment to them. It was further alleged that the trial has been vitiated by the admission of legally inadmissible evidence. No instances of this were given. It is also said that the learned Magistrate had no jurisdiction to frame charges on the ' old materials' by which is presumably meant the evidence already on record. He clearly had such jurisdiction. The rule is accordingly discharged.
7. The learned Sessions Judge in his letter of reference recommends that the Magistrate's order for a de novo trial of the tea group be set aside. The first question that arises upon this is whether there was any need to split the case up whether, that is to say, there would have been misjoinder, if in addition to the charges framed against the money group, the charges proposed to be framed against the tea group (which unfortunately are not before us) were joined in the same trial. On this point, for the reason I have already indicated, it is impossible for us to form our own opinion. The Public Prosecutor and the Magistrate thought that there would be misjoinder. The Judge was evidently of the same opinion. We cannot do otherwise than accept this opinion. That being the position, what course was open to the Magistrate? He had reached the stage contemplated by Sections 253 and 254, Criminal P.C. and was faced with the alternative of either discharging the accused or framing charges against them. In his opinion there was a prima facie case against all nine accused of offences triable under Ch. 21. He could not thereupon discharge any of them. He was required by Section 254 to frame charges against them, but if he did so, misjoinder would result.
8. In the opinion of the learned Sessions Judge, the only way out of the impasse was to frame charges against all the accused and commit them all to the Court of Session, where the case could then be split up. This suggestion is supported neither by the accused nor by the Crown. The offences are triable either by the Court of Session or by a Magistrate of the First Class, and it cannot be said that the case is not of sufficient gravity to justify a commitment. The questions for decision are however complicated; the trial is likely to be long protracted, and we are satisfied that the Magistrate exercised a wise discretion in not committing the accused for trial. The solution not being acceptable, the situation was one for which the Code makes no provision. The Magistrate must according to Section 254 frame charges, but if he does, there must be misjoinder, and his proceedings which may take months longer and cost large sums of money must eventually be set aside. Is he then compelled to frame illegal charges? Obviously this cannot be so. It has been held more than once by this Court that Criminal Courts have an inherent power to make such orders as may be necessary for the ends of justice. 'This inherent power' it was said in Budhu Lal v. Chattu Gope AIR 1918 Cal 850 is not capriciously or arbitrarily exorcised; it is exercised ex debito justitiae to do that real and substantial justice for the administration of which alone Courts exist; but the Court in the exercise of such inherent power must be careful to see that its decision is based on sound general principles and la not in conflict with them or with the intentions of the Legislature as indicated in statutory provisions.
9. This was quoted with approval by Mookerjee A. C. J. in Pigot v. All Muhammad Mandal AIR 1921 Cal 30 at page 528. Similarly in Rahim Sheikh v. Emperor AIR 1923 Cal 724 at page 875 Buckland J. said:
So far as it deals with any point specifically, the Code of Criminal Procedure must be deemed to be exhaustive and the law must be ascertained by reference to its provisions, but where a case arises which obviously demands interference and it is not within those for which the Code specifically provides, it would not be reasonable to say that the Court had not the power to make such order as the ends of justice require.
10. That case has this point in common with the case before us that if the order complained of had not been passed, the proceedings would have had to run their course to the end, though vitiated by a flaw which must result in their being set aside. In this case what the learned Magistrate has done is to order a de novo trial of the tea group, four out of the nine accused who were before him. Section 229 of the Code provides that the Magistrate may direct a new trial after adding to or altering a charge. It is not therefore a procedure alien to the Code; it is in harmony with the intentions of the Legislature as indicated in its statutory provisions. Nor was it in our opinion to the prejudice of the accused, though they themselves say that it will cause them irreparable mischief, and the learned Judge thinks that it will prejudice them very seriously both in time and pocket. For, what are the alternatives? Commitment to the Sessions, which he himself suggests, would thus affect all of them, not only the tea group. To quash the proceedings which is the prayer of the accused would leave it open to the Crown to take fresh proceedings against all of them. In fact any course will be expensive, but de novo trial of the tea group less expensive, it seems to us than any other.
11. We hold therefore that in the circumstances the learned Magistrate acted rightly in the exercise of his inherent power in ordering a de novo trial, and that there is no reason to set aside his order. The whole difficulty has arisen because the Magistrate refused to consider the question of the joinder of charges, though it was raised by the Public Prosecutor in his opening, until he had recorded all the prosecution evidence. He referred to the case in Rash Behari v. Emperor : AIR1936Cal753 commonly called the Electricity Theft Case, as authority for his action. In our opinion it is not so. The point for decision in that case was what must be looked to, to see whether there has been misjoinder. A number of decisions are quoted in which it was held that the accusations must be looked to, not the result of the case. The last was the case of Superintendent and Remembrancer of Legal Affairs, Bengal v. Baghulal Brahman (1935) 62 Cal 946 where Lort-Williams J. said:
The provisions are intended to deal therefore with the position as it exists at the time of the charge, and not with the result of the trial;
and the judgment continues:
We must therefore look to this matter as it appeared to the learned Magistrate at the time when he framed the charges.
12. This is clearly what the learned Magistrate had in mind. Now what is decided is this, that a Court of Appeal or revision in dealing with a question of misjoinder, must look to the position as it appeared when charges were framed. In deciding whether charges were rightly framed, you must look at the position as it appeared to the Magistrate, when he framed them. But it was not decided, and it does not follow, that a Magistrate must wait till the stage of framing charges before he makes up his mind whether to split a case up. Such a course is, as the present case forcibly demonstrates, most inconvenient, and it should ordinarily be possible for a Magistrate to decide the question of joinder after the case has been opened by the Public Prosecutor. We reject the reference for the reasons given.
13. I agree.