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TMI Blog1937 (4) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... imprisonment on each charge, the sentenses to be concurrent. B.S. Vidyarthi has also been convicted on charge No. 12 under section 409, I.P.C, and has been sentenced to undergo two years' rigorous imprisonment and to pay a fine, the sentence of imprisonment to be consecutive with the sentence which has been imposed upon him under section 477-A, I.P.C. These four persons have been acquitted on the remaining charges. There is an appeal by the Local Government against the acquittal of B.S. Vidyarthi, A.B. Tandon, Gopi Nath Singh and R.B. Govind Prasad on charges Nos. 1, 4, 6 and 8 and there is also an application by the Local Government for enhancement of the sentences which have been inflicted on them for the offences in respect to which they have been convicted. These persons have also appealed to this Court against their conviction; R. B. Govind Prasad has however died in the meanwhile and so his case is no longer before us. The case for the prosecution briefly put was that the accused conspired to float a bank with the object of defrauding the public, that certain of them committed specific offences in furtherance of the conspiracy and that certain of them committed other offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Liquidator of the Indian States Bank, Ltd. (in liquidation) and to say that the Court considers it a fit case for inquiry by the police. I have the honour to be. Sir, Your most obedient servant, (Sd.) S . E.J. Milk, Officiating Registrar. Thus, there can be no doubt that the Company Judges of this Court were of opinion that there was a prima facie case against the promoters of the Indian States Bank and desired that the matter be investigated and if the evidence were found to be sufficient, that the said promoters be put on their trial. Even assuming however that the provisions of section 237, Companies Act, were not substantially complied with, it is obvious that the Act nowhere lays down that there can be no prosecution on a criminal charge otherwise than upon a direction by the Company Judge or Judges. In our opinion, there is no force in this plea. The second point taken is that the charges of forgery and falsification of accounts can only be tried under section 236, Companies Act. That section provides that: "If any director, manager, officer or contributory of any company being wound up, destroys, mutilates, alters or falsifies or fraudulently secrete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcept on complaint by the Company Judges as required by section 195 (1)( a ) Criminal Procedure Code. Similarly it is pleaded that charge No. 1 was not triable in respect to conspiracy to commit forgery except on complaint as aforesaid. The Full Bench case in Emperor v. Khushal Pal Singh, is clear authority to the contrary. It was held therein that section 195 (1) (a) must be read with section 476, Criminal Procedure Code, and that section 195 (1)( a ) applies only to cases where an offence is committed by a party as such to a proceeding in any Court in respect of a document which has been produced or given in evidence in such proceeding. The documents which are the subject of charges Nos. 1, 6 and 8 are not alleged to have been forged by a party as such to the liquidation proceedings and the offences, if any, were not committed in or in relation to those proceedings. This plea also has no force and fails. There is another legal plea which was not taken at the trial but which finds place in the memorandum of appeal and has been vigorously pressed before us. It is to the effect that there has been a misjoinder of charges and also of persons in violation of section 233, Crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere also charged with falsification of accounts, and cheating and the others were charged with abetment of these offences. A plea of misjoinder was taken at the trial and in appeal and the plea found favour with a Bench of the Madras High Court. At. p. 504 Benson, J., observed: "In the present case I do not think that it can be said that the alleged misappropriations, extending over the whole period of the company's existence, were committed in the course of the same transaction within the meaning of section 235; for, if so, the expression would equally cover misappropriations of a similar kind extending, it may be, over 40 or 50 years. This would obviously render nugatory the provisions of the law which are designed to simplify and define within reasonable limits the charges that may be tried at one and the same time and so avoid the embarrassment of the accused and, I may add, of the jury, in attempting to deal with a multitude of charges at one and the same time ..it is very desirable that Public Prosecutors and the Courts should give full effect to the spirit of the provisions of the Code, instead of straining them to cover doubtful cases " At page 506 Abdur Rahim, J., said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt it was objected en behalf of the accused that there could not be a joint trial of the charges relating to the two balance-sheets, but the objection was disallowed on the ground that the offences relating to these balance-sheets formed part of the same transaction. On appeal a Bench of the Bombay High Court held that the trial was illegal inasmuch as the different acts attributed to the accused in respect to the two balance sheets did not form part of the same transaction within the meaning of Sees. 235, 239, Criminal Procedure Code. At p. 482 Heaton, J., observed: "From the prosecution point of view, it is perfectly correct to say that both these balance-sheets were prepared in pursuance of a conspiracy. One only has to think 'over the matter a little carefully, however, to see that this idea of a conspiracy covers a very great deal that cannot be included in the idea of' the same transaction'. If we were to take those words as covering-a case of this kind, it would lead us to treat the same acts of misconduct or fraud, however often repeated, as constituting the same transaction, if there was the same general purpose underlying the repeated acts. But something far more defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esign of defrauding the public as far as it goes, such acts cannot be. tried together under section 235 (1). It was pointed out in this case that Courts should give full effect to the spirit of the provisions of the Code instead of straining them to cover doubtful cases. In Ramnarayan Amarchand v . Emperor, Heaton.J., pointed out the distinction between acts committed in pursuance of a conspiracy and acts committed merely in pursuance of a general policy of deception, plunder and the like the former may form one transaction, but not the latter". In the case last referred to, it does not appear whether the plea of misjoinder was taken at the trial, but it was taken before the Judicial Commissioner of Chota Nagpur in appeal. It was not accepted by him, but was allowed in revision by the High Court. Now in the present case it seems to us that the separate acts of criminal breach of trust which were admittedly not committed in pursuance of the conspiracy, but were isolated acts committed individually during the continuance of the conspiracy, were not part of the same transaction with the conspiracy itself and with those acts which were alleged to have been the subject of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me and those offences being spread over a longer period than by law could have been joined together in one indictment". This case was decided in 1901. It was referred to in a Lahore case, Allu v. Emperor. In that case two parties had been put on the trial as the result of a fight. In each of the two cross-cases the witnesses for the prosecution were at the request of the accused and their counsel treated as defence witnesses in the other case and there was a consolidated judgment. It was held that the procedure adopted was a serious departure from the usual and proper course and the fact that the prisoners and their counsel had consented to it could not give it a legal sanction. It was observed that: "It is a well-established principle of law that a prisoner can consent to nothing which is not authorised by law and the consent of counsel for an accused person cannot validate a course of procedure which the law does not authorize " It was further held that: " section 537 of the Code does not apply to an infringment of statutory requirement, but only to errors, omissions and irregularities of a technical nature which may occur by accident or oversight in the course of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the proceedings, but they wish it to be understood that no serious defect in the mode of conducting a criminal trial can be justified or cured by the consent of the advocate of the accused " In the circumstances of that case however, their Lordships held that non-compliance with the strict provisions of section 360, Criminal Procedure Code, only amounted to an irregularity and was cured by section 537 of the Code. In the Full Bench case in Emperor v. Ernamali, the provisions of section 326, Criminal Procedure Code, had not been followed by the trial Court. Before the High Court at Calcutta it was objected on behalf of the accused that the trial was bad inasmuch, as the jury had not been constituted in accordance with law. The High Court held that there had been an irregularity which was technical and curable. We mention this case because of certain observations which were made in the judgment in respect to the decisions of the Privy Council in Subramania Ayyar v. Emperor, and in Abdul Rahman v. Emperor. At. p. 216 Rankin, C.J., observed as follows: "The Judicial Committee pointed out in Subramania Ayyar v. Emperor that though in a sense the merest irregulari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 1901, the Legislature did not introduce the word ' illegality ' in section 537 or anywhere else in the Code, although it was amended after that year. This being the state of the law, we do not think that we should introduce a distinction between 'illegality' and 'irregularity' The sole criterion given by section 537 is whether the accused person has been prejudiced or not. The object of procedure is to enable the Court to do justice, but if, in spite of even a total disregard of the rules of procedure justice has been done, there would exist no necessity for setting aside the final order which is just and correct, simply because the procedure adopted was wrong". A portion of the above observations was quoted as authority by a Bench of this Court of which one of us was a member Lala v. Emperor. In that case it was pleaded that the jury had not been properly constituted under section 326, Criminal Procedure Code, and the case in Emperor v. Ernamali was referred to. The Full Bench case again fell to be considered by a Bench of this Court in Mathuri v. Emperor. Seven persons were tried together upon a number of charges. Two of them were charged with offences under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances in which a defect in procedure might be incurable. Per contra in Subramania Ayyar v. Emperor they did not say that an illegality in the form of trial is in all circumstances incurable. Now the Full Bench of this Court in Kapoor Chand v. Suraj Prasad has interpreted these two decisions of the Privy Council in a certain way and has explained the meaning and implications of section 537, Criminal Procedure Code. The views thus expressed are authoritative and are binding on us and we are accordingly relieved of the necessity of interpreting those pronouncements for ourselves or explaining the provisions of Sec 537, Criminal Procedure Code. In the present case there has been a violation of a statutory provision against a particular mode of trial. The trial was thus illegal. The Full Bench held, however, that there is no distinction between an illegality and an irregularity ; both are curable under section 537, the sole criterion being whether the defect has or has not occasioned an injustice. In these circumstances, although the trial in the present case was illegal for misjoinder, it can only be held to be vitiated if we find that the accused were prejudiced or embarra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as regards the form of trial was taken before the Judge, but we also note that the accused appear to have been only occasionally and spasmodically represented by counsel. On the very face of things, it would appear that the accused must inevitably have been bewildered and embarrassed in having to defend themselves against such a diversity and multiplicity of counts, at least six of which were illegally joined with the others inasmuch as they did not form part of the same transaction. The trial resulted in a conviction on three only out of the seventeen charges. The Local Government has appealed against the acquittal on four of the remaining charges. We must therefore assume that the accused have been rightly acquitted on ten out of the seventeen charges. There is in the circumstances a clear presumption of prejudice, which is not rebutted by the omission of counsel to object in the Court below to the illegality of the trial. The learned Judge himself felt embarrassment both on his own behalf and on behalf of the accused. At p. 878 he remarks in his judgment: "A very large number of instances have been cited, which, according to the prosecution, go to show that the Indian States ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did so." At p. 345 Mukherji, J., remarked: "Applying the Exceptions in Sees. 235 and 239, Criminal Procedure Code, all these charges could no doubt be legally joined; but it should be remembered that the provisions of these Sections are merely enabling ones and if there is risk of embarrassing the defence such joinder of charges should not be resorted to." Further at p. 346 he observed: "In my opinion the accused were embarrassed in their defence and the jury misled and confused, and there has not been a trial of the case upon charges properly framed in consonance with the facts alleged by the prosecution. A multitude of charges not having any proper foundation, obscuring the case which the accused had got to meet, were put forward, and therefore there was no proper trial which the accused were entitled to under the law." In the end, the Court ordered a re-trial. It may be noted that in that case, as in the one before us, no objection was taken at the trial itself. In a later case, Emperor v. Ernamali a Full Bench of the Calcutta High Court had occasion to refer to the Privy Council decisions in Subramania Ayyar v. Emperor, and in Abdul Rahman v. Emperor, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of a fair trial is likely to be endangered by the production of a mass of evidence directed to many different matters and tending by its mere accumulation to induce an undue suspicion against the accused, then the propriety of combining the charges may well be questioned." The principles thus laid down in the aforementioned case were cited with approval by this Court in Sanuman v. Emperor. In the present case, there were 99 witnesses for the prosecution and about 1,000 documentary exhibits. Our paper books alone contain 890 pages of printed matter. Having regard to all the circumstances, we are compelled to hold that the accused were embarrassed in their defence in having to meet a multifarious , accumulation of evidence upon a diversity of counts, several of which were illegally joined in the trial. We wish to do justice to the investigating officers who must have devoted an immense amount of time, labour and care in collecting, sifting and coordinating this mass of evidence, but we think that before a prosetion of this character is launched, legal advice ought to be taken lest the ends of justice be defeated. It remains to be determined whether or not a re-trial shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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