STATE OF BOMBAY versus UMARSAHEB BURANSAHEB INAMDA

J.-This appeal, on a ccrtifirate grantfd by the High Court of Bombay, rai;;;is the question whether the contravention of the provisions of eub-s. (2) ofs. 222 of the Code of Criminal Procedure, hereinafter called the Code, in the framing of the charge against an aecu.sed, vitiates the trial.

p. 712

The facts leading to the appeal, in brief', are aa follows. The respondents were charged and tried at tho tiamo trial of the offences under 120B read with s. 406, I.P.C., and of an offence under s. 406 I. P. C., committed in pursuance of the criminal conspirncy t.hey had entered into. They were also tried, but ·acquitted of other offenciis oharged with. They appealed against their conviction of the offence under s. 120-B read withs. 406, I.P.C., and of the offence under s. 406, I.P.C. The charge under

p. 712

406, I.P.C., was with respect to the commission of Lreaoh of trust of a sum of Ra. 2,18,369/- between the period March 6, 1949, and June 30, 1950. It was contended before the High Court that the charge framed contravened the provisions of subs. (2) of s. 222 of the Code which allowed a combined charge with respect · to the amount embezzled within a period of a year. The High Court agreed with this contention and, holding the trial void, set aside the conviction of the respondents and acquitted them of those offences. The High Court, however, maintained the order of acquittal 1s respect of the other offences. The State of Bombay (now Maharashtra) has filed thi8 appeal against the order setting aside the conviction of the respondents.

pp. 712–713

It is not necessary for us to determine in this appeal the general question whether the contravention of the provisions of sub-s. (2) of s. 222 of thA Code, in the frnming of the chlirge, will always make the trial void, as, in this particular case, the offence under s. 406, I.P.C., charged against the respondents was said to have been committed in pursuance of a criminal conspiracy entered into by them. It will therefore suffice, for the purpose of this case, to consider whether such a defect in the charge vitiates the present trial.

p. 713

Section 222 of the Code is one of the sections in Chapter XIX which deals with Form of Charges. Sections 221, 222 and 223 deal with what should be mentioned in thP charge. The whole object of the charge is to inform both the prosecution, and the accused particularly, of the accusation the prosecution has to establis'ii and the accused has to meet. So long as the accused knows fully what accusation he has to meet, any error in the narrat.ive of the rharge Ut!ed not be fatal to the trial. Sections 225, 23:?, 535 and 537 save the trial from being vitiated unless of course the accused has been prejudiced and failurtJ of justice has taken place.

p. 713

Sections 233 to 239 deal with the joinder of charges, and t.bey speak not only of an aocnsed '1ein~ charged with offences, but of such charges hcini;r tried separately or jointly. Section 233 states that for nvery distinct offence of which any person is accused, there sha.11 be a. separate cha.rge a.nci every such charge sha.11 be tried sepa.rately, except in the cases mflntioned in 234, 235, 236 and 239. It is clear tha.t the genera.I rule is that there should be a separate trial for e~h distinct offence or which a person is accused. It follows that each item of property of which an accused is alleged to havc committed breach of trust, constitutell one distinct offence and that, in general, it would be necessary to have as many trials as there be distinct offenc~s of criminal breach of trust committ.ed by the accused. Buts. 222(2) provides that when the aooused is charged with criminal breach of trust, the charge may be with respect to the grOBB sum embezzled within a period of one year and that the charged Ro framed shall be doemed to be a charge of one offonoo within the meaning of s. ;/:14. The charge framed in the prosent case was with reRpect to the groBB sum cm hczzled within a period of more than twelve months, the pPriod bl>ing between March fi, 1949 and June :10, 1950. The charge therefore was in contravention of the provisions of

pp. 713–714

222(2). This defect in the charge, however, did not lead to 1my prejudice to the accuse<l in the trial and thero·fore did not vitiate tho trial, in view of the provisions of s. !i3i of the Code.

p. 714

'l'ho charge could have been split up into two charges, one with respect to the offence of criminal breach of trust comm itied with respect to the a.mount cmbl'zzlcd bet ween March fi, l!H!l and March 5, 1950 and the other with respect to the a.mount embezzled between March fl, 1!150 a.nd ,June :lO 1950. The two offences of criminal breach of trust could have been tried toget.her in thr. present as the offences were said to have boon committed in pursuance of the criminal conspiracy entered into by the accused. All the oft'eno611 committed in pursuance of the conspiracy are committed in the course of the same transaction and therefore can he tried together at one trial, in view of sub-s. ( 1 \of s. 235 of the Code which pro· vides that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence, It is therefore clear that no prejudice was caused to the accused by the defect in the charge.

pp. 714–715

A similar view has been taken by this Court in Kadiri Kunhahammad v. The State of Madras(').

p. 715

We may further point out that the High Court should not have expressed its opinion or passed any order with respect to the acquittal of the respondents for the other offences when the order of acquittal was not before it for consideration and when it had held the entire trial to be void on acco11nt of the contravention of the provisions of sub-a. (2) of s. 222.

p. 715

We therefore hold that the trial of the respondents was legal and therefore allow the appeal and set aside the order of the High Court. Their appeal airainst their conviction has not bet>n heard on merits and therefore we remand the case to the High Court for further hearing aocordinll' to law.

p. 715