A.C. Sen Gupta, J. - (1.) These two appeals have been filed by the two accused's of the Special Court Case No. 21 of 1968 each convicted and sentenced to suffer rigorous imprisonment for four years and to pay a fine of Rs. 1000/- in default to suffer rigorous imprisonment for four months under section 120-B, I.P.C read with section 5(l)(c) of the Prevention of Corruption Act, 1947 (Act II of 1947). These two appeals were heard analogously.
(2.) Originally when the accused's was first tried each one of them was convicted and sentenced on each of the charges under section 120-B, I.P.C read with section 5(1)(c) of Act II of 1947 (hereinafter referred to as the 'said Act') by the order of the then Additional Special Judge passed on 8.1.70. The charges were as follows- "That you, (Ajit Banerjee) Post Master Delta Mill Post Office between 2nd July, 1967 and 7th July, 1967 in pursuance of the said criminal conspiracy committed at Delta Mill Post Office criminal misconduct in discharge of your duty by dishonestly or fraudulently misappropriating or converting to your own use the sum of Rs. 3652-93 p. or so including postal stamps being the property of the Government lying at Delta Mill Post Office under your control as public servant or allowed Ramesh Ch. Das clerk of the said Delta Mill Post Office to do so and thereby committed an offence punishable under section 5(1)(c) of the Prevention of Corruption Act being punishable under section 5(2) of the Prevention of Corruption Act (Act II of 1947) within the cognizance of this Court. And hereby direct that you be tried by the said Court on the said charge." "That you (Ramesh Ch. Das), Clerk, Delta Mill Post Office between 2nd July, 1967 and 7th July, 1967 in pursuance of the said criminal conspiracy committed at Delta Mill Post Office misconduct in discharge of your duty by dishonestly or fraudulently misappropriating or converting to your own use the sum of Rs. 3652-93 paise or so including postal stamps being the property of the Government lying at Delta Mill Post Office under your control as public servant or allowed Ajit K. Banerjee Sub-Post Master of said post office to do so and thereby committed an offence under section 5(1) (c) of Act II of 1947 being punishable under section 5(2) of Prevention of Corruption Act within the cognizance of this Court. And I hereby direct that you be tried by the said Court on the said charge."
(3.) In the appeals preferred by the accused's against the aforesaid order of conviction and sentence, it was held by this court that the said charges were "very confusing because the appellants were not in a position to know whether according to the prosecution they had actually misappropriated the sum mentioned or have abated the other appellants in the Act" and that "this is irregularity in the framing of the said charges has clearly prejudiced the appellants and had occasioned a failure of justice." This Court accordingly allowed both the appeals and remanded the case back for retrial with the following direction:- "The learned Judge........will retry the accused appellants on the evidence already on record after framing appropriate charges against the appellants. We may mention in this connection that if the prosecution is not definite as to which of the appellants had misappropriated the sum of money including postal sums, they may not proceed with this charge to confine themselves to the charge of conspiracy alone. With reference to this observation of this court the learned advocates for the appellants drew our attention to Order No. 76 dated 18.4.79 of the learned Trial Court and argued that if the charge under section 120-R read with sections 5(1)(c) and 5(2) of the Act fails none of the accused could be convicted under section 51 (c) read with section 5(2) of Act II of 1947. We uphold this contention of the learned advocates for the appellants. It is true that in certain cases the order of conviction can be passed on a charge not actually framed at the time of trial. In this connection the decision in the case of Willie Stanely v. State of M.P., reported in AIR 1956 page 116 was referred to. In that case both the accused persons were charged under section 302/34, I.P.C. for murder and one of them only was convicted under section 302, I.P.C. for inflicting the fatal blow on the victim. In the facts and circumstances of that case it was held that omission to frame the charge under section 302, I.P.C was a curable irregularity. It was so held because no prejudice was caused to the accused for non-framing of a charge under section 302, I.P.C. The case of Nanakchand and Suraj Pal reported in AIR 1955 SC pages 274 and 419 were distinguished because in the aforesaid case reported in AIR 1955 S.C. it was held that a person charged under section 302/149 cannot be convicted under section 302 if no charge therefor is framed because omission to frame a charge under section 302 cannot be a curable irregularity as it causes prejudice to the accused. In the present case also for non-framing of a specific charge under section 5(1)(c) of the Act the accused cannot be convicted on such charge on the ground of prejudice to the accused. The learned trial court in his Order No. 76 dated 18.4.79 after referring to the order of this court observes as follows:- "In the circumstances I think that it is not possible for the prosecution to prove by evidence the specific charge under section 5(2) of the Prevention of Corruption Act against both the accused's or any one of the accused's. I, therefore, hold that none of the accused should be charged under section 5(1) (c) of the Act II of 1947 being punishable under section 5(2) of the Prevention of Corruption Act. The said charge therefore is to be deleted. The accused under the circumstances ; are to be tried under section 120-B read with section 5(1) (c) of the Prevention of Corruption;