1. In my opinion, this Rule should be discharged. The petitioner was tried and acquitted on a charge of having committed criminal breach of trust, in respect of Rs. 18,924-4-0, during the period between 1st October 1931 and 1st lb arch 1922. He is now being prosecuted on a charge of having committed criminal breach of trust, in respect of a sum of Rs. 100 on the 30th November 1921. It is contended on behalf of the petitioner that, under Section 403 of the Code of Criminal. Procedure, the accused having been tried on the charge of defalcation committed within the periods stated, he is not liable for prosecution for any further defalcation committed during that period. There would be considerable force in this contention if it were shown that the defalcation, which is the subject of the present charge, could or might have been included in the former charge. But it is the case for the Crown, and on the materials before us I cannot say that that case will not be substantiated at the trial, that the defalcation of this item charged could not have been in the knowledge of the prosecution at the time of the previous trial. That being so, if it was impossible for the accused to have been tried at the previous trial. I am unable to see how the acquittal can, under the provisions of Section 403, Criminal Proced re Code, be a bar to his being now tried. I would, therefore, discharge this Rule.
2. (February 2, 1923.)--I regret I am unable to agree with my learned brother in the view of the law which he has taken in this case. In my opinion the second prosecution on the facts disclosed would not lie. The accused was charged in the previous trial of 'committing defalcation, being a public servant, within the period from 1st October, 1921 to 1st March 1922, in respect of an amount which was alleged in the charge to be rupees eighteen thousand, nine hundred and twenty four and annas four only, by dishonestly misappropriating or converting to his own use having been entrusted in such capacity with certain property or dominion over such property. The present case is an attempt to prosecute him for committing embezzlement, in respect of the sum of rupees one hundred received by him on the 30th November 1922, that is, on a date within the period in respect of which he was triad at the previous trial. It is, therefore, contended that the acquittal in the previous trial following on the withdrawal of the charge by the Standing Counsel under Section 494 of the Criminal Procedure Code, operate as a bar to the present prosecution.
3. Section 222 (2) Criminal Procedure Code lays down that: 'When an 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'. It means that it is permissible to prosecute a person for defalcation within certain given dates irrespective of the number of items which he is said to have misappropriated. This clause to my mind modifies or affords an exception to the general rule enunciated in Section 234, Criminal Procedure Code which says that a person cannot be tried for more than three offences com mitted within the period of one year. It enables the prosecutor to charge the accused with misappropriation in respect of any number of items in spite of Section 234, Criminal Procedure Code, but does not entitle him to maintain prosecution by instalments for misappropriation, committed within the same period, of items which may have formed the subject of the previous charge. The main element of the offence tried under Section 222(2) is the period, within which the accused is said to have committed the offence of criminal breach of trust and not so much the amount in respect of which he might have committed it. For example, it the accused commits criminal breach of trust, within certain dates, in respect of twenty items, it is open to the prosecution to charge him with all the twenty or for any less number. The offence would be considered to be one committed during those dates. If any other interpretation were accepted, namely, that the prosecution is at liberty to leave out certain items for further prosecution, the object of the law barring further prosecutions on the same facts would be defeated and would result in the splitting up of the 'one effence' as created by Section 222(2). I do not think that the fact whether the item for the embezzlement of which the accused is subsequently charged was known or not known to the complainant or could or could not have been known to him, affects the law on this point and. is relevant to the present enqiry. The question that really matters is whether the accused might have been charged in the proceeding trial with the offence for which he is subsequently put on his trial. As a matter of fact, from the perusal of the record I find that Major T.N. Holt White was the complainant in the previous case and in the charge-sheet it is stated that the accused committed criminal breach of trust in respect of rupees eighteen thousand and odd within the 1st October 1921 and 1st March 1922. In the detail of the items of the amount the fifth item is given as 'other item,' In the present case the same gentleman Major Holt White states in the charge-sheet submitted by the Police that 'the accused committed criminal breach of trust as cashier in the office of the Military Works Department in respect of rupees one hundred deposited as earnest money in the said office by one Ramdhari, a contractor, on a tender on 30th November 1921, and which money was entrusted to the accused by the complainant through the ordinary course of business. I do not see how, reading these two charges, it can be said that Major Holt White did not know or could not know that he had made over this money to the accused when he brought the first charge. Be that as it may, I am of opinion that on the general question of law that is raised the plea of autre fois acquit must prevail and this Rule must be made absolute.
4. (March 6, 1923).--This matter comes before me by reason of a difference of opinion between Mr. Justice Newbould and Mr. Justice Suhrawardy. The facts are as follows:
5. The petitioner was charged at the Criminal Session held in Calcutta in August 1922 under Section 409 of the Indian Penal. Code with criminal breach of trust in respect of a sum of Rs. 18,924-4-0 alleged to have been misappropriated by him between the 1st October 1921 and the 1st March 1922. The charge was withdrawn with the leave of the Court on the 28th August 1922 as no evidence was offered. This in law amounts to an acquittal.
6. The petitioner is now being prosecuted at the instance of the complainant, who was also the complainant in the previous matter, for criminal breach of trust as a servant under Section 408 of the Indian Penal Code in respect of a sum of Rs. 100 alleged to have been misappropriated by the petitioner on the 30th November 1921, that is to say, within the period covered by the charge under Section 409 in respect of the sum of Rs. 18,924-4-0.
7. The prosecution allege that the sum of Rs. 100 was not included in the sum of Rs. 18,924-4-0, and that the facts relating thereto were not known to them at the time of the previous charge, and the matter has been argued on this basis.
8. It is contended on behalf of the petitioner that he is now being charged with the same offence of which he was acquitted at the previous trial, and that, having regard to the provisions of Section 222(2) of the Code of Criminal Procedure, he cannot now be charged with any misappropriation between the 1st October 1921 and the 1st. March 1922 as any misappropriation between that period, whether included in the gross sum or not, is one offence by reason of the provisions of tie Sub-section. This is the view taken in In re Appadurai Ayyar 32 Ind. Cas. 158 : 17 Cr. L.J. 30.
9. On behalf of the Crown, it is contended that Section 222(2) only dispenses with the particulars which otherwise would be required, but that it does not say that the gross sum is to include every act of misappropriation committed within the dates specified in the charge. It is urged that the essence of the offence is the misappropriation, and not the time within which it took place and that, as the Rs. 100, the subject of the present charge, was not included in the gross sum the offence now charged is not the same as that in respect of which the petitioner was previously acquitted. This is the view taken in Emperor v. Kashinath Bagaji Sali 5 Ind. Cas. 970 : 12 Bom L.R. 226 : 11 Cr. L.J. 337. With this view and with the reasoning of Chandavarkar, J., in his judgment in that case I respectfully agree.
10. In the result, I agree with Mr. Justice Newbould that the Rule should be discharged.