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TMI Blog1967 (9) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... was sentenced to suffer rigorous imprisonment for a period of one year and to pay a fine of ₹ 500 in default to suffer rigorous imprisonment for a period of three months. The appeal filed by the petitioner against the order of conviction and sentence was dismissed by this court. His application for leave to appeal to the Supreme Court and the application filed by him before the Supreme Court for special leave to file an appeal were also dismissed. 3. After the conclusion of the Sessions Case, two more chargesheets were filed against the petitioner under S. 409 of the Indian Penal Code in the Court of the learned Judicial Magistrate, First Class, Jalgaon. In the first of these chargesheets, the allegation against the petitioner is that he had committed criminal breach of trust in respect of a sum of ₹ 53 which was received by him on the 23rd of July 1962 and that he had also committed a similar offence in respect of a sum of ₹ 106 which was received by him on the 21st of August 1962. In this case (Case No. 42 of 1966) an application Ex. 4 was filed by the petitioner contending that the order of conviction in Sessions Case No. 46 of 1963 constituted a bar to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a certain period he cannot be prosecuted again for the offence of criminal breach of trust committed during the same period, for which he could have beer charged and tried in the same Sessions trial. Now Section 403 is founded on a rule of public policy that a person shall not be tried for the same cause more than once. It provides by sub-section (1) that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of that offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for 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. Sub-section (1) can, in our opinion, have no application to the facts of the case before us, because the petitioner is not being tried for the same offence for which he was tried and convicted in Sessions Case No. 46 of 1963. In that case the charge against him was that he had committed criminal breach of trust in respect of a gross sum of ₹ 583 which was entrusted to him between the 20t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve no application to this case and therefore, the learned Additional Sessions Judge was justified in taking the view that the charges now levelled against the petitioner are valid and the proceedings are maintainable. 9. It is then urged on behalf of the petitioner that assuming that sub-section (1) of Section 403 has no application to the case, the principle underlying that sub-section should be extended to the case and the charges should be quashed. It is in the context of this argument that the attention of the learned Chief Justice was invited to certain decisions. Having considered this argument carefully, and the several decisions to which our attention has been drawn, we are of the opinion that there is no conflict of decisions on the question and there is certainly no conflict between the views expressed by the two Division Benches of this Court in Emperor v. Kashinath Bagaji and Emperor v. Anant Narayan, 47 Bom LR 138=(AIR 1945 Bom 413). 10. The question for our decision is whether in circumstances as those before us, the second trial is barred by reason of the principle contained in Section 403 if not because of the direct application of that section. In (1910)12 Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the legality of the second trial, no other question was considered by them. 11. It is argued on behalf of the petitioner that this decision is in conflict with that in 47 Bom LR 138=(AIR 1945 Bom 413). In the latter case the accused was found to have misappropriated certain sums belonging to Government which he repaid subsequently. He was charged for offences under Sections 409 and 466 of the Indian Penal Code in respect of two items only as having been misappropriated during a certain period of time. The trial was held before a Sessions Judge, who, agreeing with the unanimous verdict of the jury as regards the charge under Section 409 and the opinion of assessors as regards the charge under Section 466, acquitted the accused. The accused was then tried by another Sessions Judge for an offence under Section 409 of the Penal Code in respect of an amount which formed part of the gross amount which was mentioned in the earlier trial but which was not included in the two charges which alone were picked up in that trial. The accused contended that the second trial was barred under Section 403 of the Criminal Procedure Code and he was therefore entitled to an acquittal. The Sessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereas the decision in Kashinath's case, (1910) 12 Bom LR 226 deals only with the legality of the second trial, the decision in Anant's case 47 Bom LR 138=(AIR 1945 Bom 413) deals principally with the propriety of the second trial. Both the cases take the view that the second trial is not illegal. Kashinath's case, (1910) 12 Bom LR 226 stops by holding that the second trial is legal but Anant;s case, 47 Bom LR 138=(MR 1945 Bom 413) proceeds to hold that though the second trial was not barred, it was desirable not to allow it to proceed. The question as to desirabiity of the second trial could arise only if it was legal. 13. Our attention has been drawn by Counsel for both the sides to a large number of decisions bearing on this question. It would be necessary to examine some of these decisions. 14. The case In re Appadurai, AIR 1917 Mad 524 is, if we may say so, unique, because it is the only decision which takes the view that the second trial in circumstances such as those before us, is illegal. The question in that case was whether the accused could be tried for misappropriation of a sum of money committed during a period which was covered by the earlier trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50). 16. The Supreme Court further held that Section 234 of the Criminal Procedure Code under which three offences of criminal breach of trust can under certain circumstances be included in one trial is an enabling provision and is in the nature of an exception to Section 233 of the Code. Therefore if each of the several offences is tried separately, there is nothing illegal about it. It is thus clear that as a matter of legality, a person who commits breach of trust in respect of several amounts can be prosecuted as many times as the number of individual items misappropriated by him. Whether the interests of justice require that this should not be permitted to be done is another question. That is the question which was dealt with in 47 Bom. L.R. 138 (AIR 1945 B~ 413) and that it is the question which was neither canvassed nor dealt with in (1910) 12 Bom. L R. 226. That is why we have taken the view that there is no conflict of view between these two decisions. 17. As we have stated earlier, the decision in AIR 1917 Mad 524 is perhaps the only one which has taken the extreme view that by reason of the provisions contained in Sections 222 and 234 the second prosecution of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Calcutta case is in no way in conflict with the view taken in the earlier Bombay decision. The Calcutta decision concerns itself more with the propriety of the second trial than with its legality. 19. The decision in (1906) ILR 29 Mad 126 is also stated to be in conflict with the view taken in (1910) 12 Bom LR 226. Now in the first place, the case in (1906) ILR 29 Mad 126 dealt with an entirely different situation and the main question which arose for decision therein was whether it is competent to a Magistrate to entertain a fresh complaint against an accused on facts substantially similar to those on which an earlier complaint was filed, the accused having been discharged in that complaint. A Bench of five Judges of the High Court heard that case, three learned Judges taking the view that if the earlier order of discharge was not set aside by the Superior Court, it is open to the Magistrate to entertain a fresh complaint on the same facts and to try the accused for the same offence. This view is founded on the basis that Section 403 cannot strictly apply to such a case for there was no previous acquittal , in the true sense of the term. One of the two learned Judges who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of a case may be such as to justify the extension of the principle underlying Section 403. 22. The decision therefore that the present prosecutions are not barred under Section 403 shall have to be upheld. But that is not always the sole question for decision. A prosecution may not be barred under Section 403 and yet as held in 47 Bom LR 138=(AIR 1945 Bom 413); ILR 57 Cal 17=(AIR 1929 Cal 457) (1906) ILR 29 Mad 126 it would not been the interests of justice to allow the case to proceed. That the High Court has such a Power is clear from Section 561A of the Criminal Procedure Code, which says that nothing in the Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is true that as held by the Supreme Court in the State of Uttar Pradesh v. Mohammad Naim, , Section 561A confers no new Powers on the High Court and it merely safe-guards all existing inherent powers possessed by the High Court which are necessary, among other purposes, to secure the ends of justice. The object of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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