DEVISHANKER Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE accused petitioners who were facing trial for offences under secs. 467, 468, 471-A and 406, I. P. C. have moved this Court against an order of the learned Additional Sessions Judge, Bundi dated 6th May, 1968, dismissing their application by which they prayed the learned Additional Sessions Judge to quash the proceedings on the ground that the trial was barred by the provisions of sec. 403 Cr. P. C. as also Art. 20 of the Constitution.

(2.) THE indictment against the accused Devishanker was that as president of the Multi purpose Cooperative Society of Chatrapura he had embezzled an amount of Rs. 27,030, between the period 1st of July, 1959 to 30th of June 1960 in collusion with the co-accused Nathu. He was also charged for the offence of conspiracy under sec. 120b for committing embezzlement of the funds belonging to the Cooperative Society when Nathu was the Secretary. THE third charge was that for concealing the embezzlement he had fabricated the account books with a view to defrauding the members of the Cooperative Society. Accordingly a charge under sec. 468 I. P. C. was framed against the accused Devi Shankar.

(3.) THE second allied question that crops up for consideration is whether on the facts in the present case an alternative charge for it could have been framed in the earlier trial or the court could have convicted the accused of the present offences in the earlier trial by virtue of Ss. 236 or 237, Cr. P. C. Secs. 236 and 237 Cr. P. C. are attracted by and large when the same set of facts may fall under one or more definitions of offences under the Penal Code. What may be in doubt be the particular section to apply and in that event the court may frame charges for the several offences that may seem to be made out on the given set of facts. However, the facts which may give rise to the applicability of the various sections defining the offence will be the same. In other words, there may be variations in the application of the sections but there will be no variation in the facts. THErefore, the dominant thing, with a view to seeing the applicability of sec. 403 Cr. P. C. or Art. 20 of the Constitution for that matter, is whether the facts constituting the present offences are the same as those which were the subject matter of previous trials.