- (1.) THESE are six criminal appeals Nos. 68 to 73 of 1961, both inclusive. All these appeals arise from the judgment of the Additional Sessions Judge No. 1, Jodhpur, dated the 7th of May, 1960. The accused Shrinath was committed to Sessions by the First Class Magistrate No. 3. Jodhpur, for trial under Sections 409, 467, 471 and 477a, Indian Penal Code. He was in the employment of the Municipal Board, jodhpur, and in that capacity he was alleged to have committed criminal breach of trust in respect of certain sums of money from the 19th of June, 1954 to the 22nd of July, 1955. In all, he misappropriated Rs. 9,445/6/9. The accused drew up treasury challans from time to time and made deposit entries in the books of account when in fact" he pocketed the amounts in whole or in part. When the accounts were audited, one such item of embezzlement came to light and, on the report of the Administrator of the Municipality, a case under Section 409, Indian Penal Code was registered against him. It was revealed during the investigation that he had embezzled municipal funds from time to time to the extent of Rs. 9,445/6/9. After commitment to the Court of Session, an objection was raised on behalf of the accused that there was misjoinder of charges relating to mis appropriation and falsification of accounts. The Additional Sessions Judge upheld the objection of the accused and he, therefore, split up the trial into 12 separate cases. He tried the accused for an offence under Section 409, Indian Penal Code and convicted him thereunder. On appeal, the conviction was upheld by this Court on the 15th of november, 1959. The learned trial Judge dropped three cases of offences under sections 467 and 471, Indian Penal Code and no appeal was preferred from that order. When the trials of the other 8 cases were taken up for offences under section 477a, Indian Penal Code, an objection was raised that they were barred by Section 403 of the Criminal Procedure Code. The learned Additional Sessions judge, placing reliance on the decision in Emperor v. Jhabbar Mull, AIR 1923 Cal 179. allowed the objection. The State has, therefore, filed these six appeals from the orders of the Additional Sessions Judge, Jodhpur, by which the proceedings in the 8 cases were dropped.
(2.) THE question involved in these appeals is whether the trials of the accused for offences under Section 477a, Indian Penal Code are barred under Section 403, criminal Procedure Code for the transaction relating to offences under Section 409, Indian Penal Code with which he was charged and convicted included the facts about the alleged falsification of accounts. As already stated, the learned additional Sessions Judge has relied on the decision of the Calcutta High Court in air 1923 Cal 179 in reaching the above mentioned conclusion. In that case, the accused was acquitted of an offence under Section 408, Indian Penal Code and he was then prosecuted for an offence under Section 477a, Indian Penal Code in respect of the false entries made by him in the accounts for the amounts alleged to have been embezzled by him. It was observed by Sanderson, C. J. as follows: "i have considered the matter, and I have come to the conclusion that, on the facts of this case, the accused ought not to be put on his trial m respect of these charges. If he were so tried, in my judgment, it would in effect amount to trying him again for the same offences as those upon which he has already been tried and acquitted by the jury, although the charges now before the Court are framed in a different manner. " The decision in Jhabbar Mull Lakkar's case, AIR 1923 Cal 179 was followed by the allahabad High Court in Mahadeo Prasad v. Emperor, 38 Cri LJ 368: (AIR 1937 All 117 ). In that case the accused was convicted of an offence under Section 408 or in the alternative, Section 408 read with Section 109, Indian Penal Code, by a First class Magistrate. On appeal, the Sessions Judge set aside the conviction and sentence under Sections 408 or 408 read with Section 109, Indian Penal Code and directed the accused to be committed to the Sessions Court to stand his trial for an offence under Section 477a. Indian Penal Code. It was held by the High Court of Allahabad that after the accused had been acquitted of an offence under sections 408 or 408 read with Section 109, Indian Penal Code, he could not be tried again on the same facts. The decision in Jhabbar Mull Lakkar's case, AIR 1923 Cal 179 was held to lay down good law.
(3.) SECTION 403, Criminal Procedure Code is as follows: "403. Person once convicted or acquitted not to be tried for same offence.-- (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again lor the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237. (2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 233, Subsection (1 ). (3) A person convicted of any offence constituted by any act causing consequences which, together with such act constituted a different offence from that of which he was convicted, may be afterwards tried for such lastmentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the: time when he was convicted. (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) Nothing in this section shall affect the provisions of Section 26 of the general Clauses Act, 1897 (X of 1897), or Section 188 of this Code". Under Section 403, Criminal Procedure Code, the trial of the accused for an offence under Section 477-A, Indian Penal Code would be barred on account of his conviction under Section 409, Indian Penal Code if it is held that he could be charged and tried in the alternative of the offence under Section 477a when he was tried for an offence under Section 409, indian Penal Code. But if it is held that the accused could be charged and tried for distinct offences of criminal breach of trust and falsification of accounts at the same trial, there would be no bar to his trial for the later offence after his conviction under the former. The answer to the question, thus, depends on the further question whether, on the facts of the case, the accused could be charged at the time of his previous trial in the alternative? If so his subsequent trial is barred. In other words it is necessary to determine having regard to the series of acts constituting the transac-tion whether the accused could be tried and convicted at the previous trial both for the offences of criminal breach of trust and falsification of accounts as per the provision of Section 235 (1), Criminal procedure Code or in the alternative as per Section 236, Criminal procedure Code.;