State of Bombay Vs. Umarsaheb
Buransaheb Inamda  INSC 18 (23 January 1962)
DAYAL, RAGHUBAR DAYAL, RAGHUBAR DAS, S.K.
CITATION: 1962 AIR 1153 1962 SCR Supl. (2)
RF 1982 SC 20 (7)
Criminal Procedure Code-Offences committed in
pursuance of Criminial conspiracy-One trial, if permissible-Defect in framing
the charge, if curable-Code of Criminal Procedure 1898 (Act V of 1898), ss.222
(2), 235, 537.
The respondents were charged and tried at the
same trial with the offences of Criminal conspiracy and breach of trust
committed in pursuance thereof during a period of more than one year. The
question arising for decision was whether, in the framing of the charge,
contravention of the provisions of sub-s.(2) of s.222 which allowed a combined
charge with respect to the amount embezzled within a period of one year,
vitiated the trial.
^ Held, that the defect in the charge did not
lead to any prejudice to the accused and therefore did not vitiate the trial in
view of the provision of s. 537 of the Code of Criminal Procedure.
When all the offences committed in pursuance
of a conspiracy are committed in course of the same transaction this can be
tried together at one trial in view of s. 235(1) of the Code of Criminal
Procedure which provides that if in one 712 series of acts so connected
together as to form the same transaction, more offences than one are committed
by the same person, he may be charged with and tried at one trial for every
Kadiri Kanhahammad v. The State of Madrs,
A.I. R. 1960 S. C. 661, followed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 237 of 1959.
Appeal from the judgment and order dated
February 10 and 11 of 1959, of the Bombay High Court in Criminal Appeal No.
1023/59 with Crinal Appeals Nos. 1048 and 1048 of 1958.
H. R. Khanna and P. D. Menon, for the
S. G. Patwardhan. J.B. Dadachanji O.C. Mathur
and Ravinder Narain, for the respondent No. 1.
1962. January 23. The Judgment of the Court
was delivered by RAGHUAR DAYAL, J.-This appeal, on a certificate granted by the
High Court of Bombay, raises the question whether the contravention of the
provisions of sub-s. (2) of s. 222 of the Code of Criminal Procedure,
hereinafter called the Code, in the framing of the charge against an accused,
vitiates the trial.
The facts leading to the appeal, in brief,
are as follows. The respondents were charged and tried at the same trial of the
offences under s.
120B read with s. 406, I.P.C., and of an
offence under s. 406, I.P.C. and committed in pursuance of the criminal
conspiracy they had entered into.
They were also tried, but acquitted of other
offences charged with. They appealed against their conviction of the offence
under s. 120-B read with s. 406, I.P.C., and of the offence under s. 406,
I.P.C. The charge under s. 406, I.P.C, was with respect to the commission of
trust of trust of a sum of Rs. 2,18,369/- between the period March 6.
1949, and June 30, 1950. It was contended
before the High Court that the charge framed contravened the provisions of sub
713 s. (2) of s. 222 of the Code which allowed a combined charge with respect
to the amount embezzled within a period of a year. The High Court agreed with
this contention and, holding the trial void, set aside the conviction of the
respondents and acquitted them of the offences.
The High Court, however, maintained the order
of acquittal is respect of the other offences. The State of Bombay (now
Maharashtra) has filed this appeal against the order setting aside the
conviction of the respondents.
It is not necessary for us to determine in
this appeal the general question whether the contravention of the provisions of
sub-R. (2) of s. 222 of the Code, in the framing of the charge, will always
make the trial void, as, in this particular case, the offence under s. 406,
I.P.C., charged against the respondents was said to have been committed in
pursuance of a criminal conspiracy entered into by them. It will therefore
suffice, for the purpose of this case, to consider whether such a defect in the
charge vitiates the present trial.
Section 222 of the Code is one of the
sections in Chapter XIX, which deals with Form of Charges. Sections 221, 222
and 223 deal with what should be mentioned in the charge. The whole object of
the charge is inform both the prosecution, and the accused particularly, of the
accusation the prosecution has to establish and the accused has to meet. So
long as the accused knows fully what accusation he has to meet any error in the
narrative of the charge need not be fatal to the trial. Sections 225, 232, 535
and 537 save the trial from being vitiated unless of course the accused has
been prejudiced and failure of justice has taken place.
Sections 233 to 239 deal with the joinder of
charger, and they speak not only of an accused being charged with offences, but
of such charges 714 being tried separately or jointly. Section 233 states that
for every distinct offence of which any person is accused, there shall be a
separate charge and every such charge shall be tried separately, except in the
cases mentioned in ss. 234, 235, 236 and 239. It is clear that the general rule
is the at there should be a separate trial for each distinct offence of which a
person is accused. It follows that each item of property of which an accused is
alleged to have committed breach of trust, constitutes one distance offence and
that, in general, it would be necessary to have as many trials as there be
distinct offences of criminal breach of trust committed by the accused. But s.
222(2) provides that when the accused is charged with criminal breach of trust,
the charge may be with respect to the gross sum embezzled within a period of
one year and that the charged so framed shall be deemed to be a charge of one
offence within the meaning of s. 234. The charge framed in the present case was
with respect to the gross sum embezzled within a period of more than twelve
months, the period being between March 6, 1949 and June 30, 1950. The charge
therefore was in contravention of the provisions of s. 222(2). This defect in
the charge, however, did not lead to any prejudice to the accused in the trial
and therefore did not vitiate the trial, in view of the provisions of s. 537 of
The charge could have been split up into two
charges, one with respect to the offence of criminal breach of trust committed
with respect to the amount embezzled between March 6, 1949 and March 5, 1950
and the other with respect to the amount embezzled between March 6, 1950 and
June 30, 1950. The two offences of criminal breach of trust could have been
tried together in the present case, as the offences were said to have been
committed in pursuance of the criminal conspiracy entered into by the accused,
All the offences 715 committed in pursuance of the conspiracy are committed in
the course of the same transaction and therefore can be tried together at one
trial, in view of sub s. (1) of s. 235 of the Code which provides that if in
one series of acts so connected together as to form the same transaction, more
offences than one are committed by the same person, he may be charged with and
tried at one trial for every such offence. It is therefore clear that no
prejudice was caused to the accused by the defect in the charge.
A similar view has been taken by this Court
in Kadiri Kundahammad v. The State of Madras (1).
We may further point out that the High Court
should not have expressed its opinion or passed any order with respect to the
acquittal of the respondents for the other offences when the order of acquittal
was not before it for consideration and when it had held the entire trial to be
void, on account of the contravention of the provisions of sub-s. (2) of s.
We therefore hold that the trial of the
respondents was legal and therefore allow the appeal and set aside the order of
the High Court.
Their appeal against their conviction has not
been heard on merits and therefore we remand the case to the High Court for
further hearing according to law.