27 November 1964
Supreme Court


Case number: Appeal (crl.) 218 of 1964






DATE OF JUDGMENT: 27/11/1964


CITATION:  1965 AIR 1248            1965 SCR  (2) 283  CITATOR INFO :  RF         1972 SC 496  (2)

ACT: Criminal  Procedure  Code, 1898, (Act 5 of 1898),  ss.  222, 233, 234 and 235--Indian Penal Code, 1860 (Act 45 of  1860), s. 409--Criminal Breach of Trust--Separate  Trials--Sentence Awarded--To run consecutively--Whether illegal.

HEADNOTE: The  appellant  was convicted in four cases for  an  offence under  s.  409 I.P.C. He was sentenced to  imprisonment  and line  in the first two cases.  The sentences imposed in  the other two cases for the offence under S. 409 I.P.C. were  to run consecutively.  The High Court dismissed the appellant’s appeal. HELD  :  (i)  There had been no illegality  in  the  Court’s trying  the  appellant  in  four  cases  regarding   amounts embezzled  within  a  few months and  in  not  ordering  the various  sentences awarded in different Sessions  Trials  to run concurrently. [288 C] The  normal rule is that there should be a charge  for  each distinct  offence,  as  provided  in s.  233  of  the  Code. Section 222 mentions what the contents of the charge  should be.   It is only in certain circumstances that the court  is authorised  to  Jump up the various items  with  respect  to which criminal breach of trust was committed and to  mention the  total  amount  misappropriated within  a  year  in  the charge.  When so done, the charge is deemed to be the charge of one offence. [286 H-287 B] (ii)Section 234 is an enabling provision and is an exception to  a. 233 of Code of Criminal Procedure.  There is  nothing illegal  in trying each of the several offences  separately. [287 E] (iii)Assuming without deciding, that these offences could be said  to  have  been committed in the  course  of  the  same transactions,  the  separate  trial  for  certain   specific offences  is  not illegal.  Section 235 too is  an  enabling section. [287 F-G]



JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals Nos.  218 to 221 of 1964. Appeals by special leave from the judgment and orders, dated May 21, 1964 of the Madhya Pradesh High Court (Indore Bench) at  Indore in Criminal Appeals Nos. 30 and 31 of  1962  Nos. 246 and 258 of 1963 respectively. Jai  Gopal  Sethi,  R. C. Mukati and R. L.  Kohli,  for  the appellant (in all the appeals). I.   N. Shroff, for the respondent (in all the appeals). 284 The Judgment of the Court was delivered by Raghubar  Dayal, J. The appellant, in these four appeals  by special  leave,  was convicted in four cases of  an  offence under  s. 409 I.P.C. and was sentenced to 4 years’  rigorous imprisonment and fine in the first two cases on January  17, 1962,  by the First Additional Sessions Judge, Ujjain,  Shri H. B. Aggarwal.  He was also convicted in these two cases of offences  under s. 467 read with s. 471 and s.  477A  I.P.C. The  sentences  imposed  for  these  offences  were  to  run concurrently  with the sentence of imprisonment for the  of- fence  under s. 409 I.P.C. The sentences imposed in the  two cases  for  the  offence under s. 409  I.P.C.  were  to  run consecutively  as  no order had been made  by  the  Sessions Judge  for  the sentence in the case in which  judgment  was pronounced  later,  to run concurrently  with  the  sentence imposed in the other case. In each of the other two cases, the appellant was  sentenced to  3  years’ rigorous imprisonment under S. 409  I.P.C.  by Shri Dube, First Additional Sessions Judge, Ujjain, on  July 20, 1963.  The Sessions Judge ordered the sentences in these two cases to run concurrently, but did not order them to run concurrently with the sentence awarded in the first case  on January 17, 1962. The  appeals against the conviction of the appellant in  the four  cases were dismissed by the High Court.  With  respect to  the sentence in the appeal against the first  conviction in Sessions Trial No. 35 of 1961, the High Court said :               "Coming to the sentences, the basic offence is               criminal breach of trust under section 409 IPC               and   a  sentence  of  four  years’   rigorous               imprisonment  cannot, in these  circumstances,               be considered excessive.  If anything, I would               call it somewhat lenient." The  sentence  of  fine of Rs. 1,000 was  considered  to  be ’feeble’. In  disposing  of the appeal against the conviction  in  the second  case, Sessions Trial No. 36 of 1961, the High  Court said with respect of the sentence :               "The sentence of imprisonment is also low; but               possibly  the Sessions Court took  account  of               the  fact  that there were other  and  similar               cases against Ranchhodlal in which there was a               possibility of a conviction." In the third appeal from the order in Sessions Trial No.  55 of 1962, the High Court said :               "If   there  had  been  an   application   for               enhancement  of  sentence, I  would  not  have               hesitated to increase the                             285               sentence  because this paying himself  on  the               part  of  the  appellant  is  a  very  serious               matter.  But there being no such prayer by the               State, the matter has to be left at that." In the fourth appeal, the High Court said



             "The  trial  Court has awarded a  sentence  of               three   years  without  fine.   It  is   quite               lenient." The  result of the four convictions and sentences passed  in these   cases   is  that  the  appellant  has   to   undergo imprisonment for 11 years for mainly committing the offences under  s. 409 I.P.C. with respect to different  amounts,  in his capacity as Sarpanch of the Mandal Panchayat, Ujjain. Special leave was granted on the question of sentence  only. One of the grounds taken in the special leave petitions  was that  his being tried in four cases for committing  criminal breach  of trust with respect to different amounts,  led  to the petitioner’s prejudice and harassment inasmuch as he was to undergo sentences, of imprisonment consecutively. Sub-section  (1) of s. 397, Cr.  P.C. provides that  when  a person  already  undergoing a sentence  of  imprisonment  is sentenced  on a subsequent conviction to imprisonment,  such imprisonment  shall  commence  at  the  expiration  of   the imprisonment  to  which he has  been  previously  sentenced, unless the Court directs that the subsequent sentence  shall run  concurrently with such previous sentence.   It  follows that a subsequent sentence of imprisonment is ordinarily  to commence  at  the  expiration  of  imprisonment  under   the previous   sentence,  and  that  the  Court  recording   the conviction  has  the  discretion to  order  that  the  later sentence would run concurrently with the previous one. The Additional Sessions Judge who convicted the appellant in two cases in January 1962 did not exercise his discretion in favour  of  the  appellant.  The other  Sessions  Judge  who convicted  the appellant in two cases in 1963 exercised  his discretion to the extent that he made the sentences in those two  cases  concurrent  and did  not  make  those  sentences concurrent  with  the  earlier  sentences  imposed  on   the appellant  in  January  1962.  The  judgments  in  the  four Sessions  Trials  are  not before us and we  are  not  in  a ’Position to say whether this aspect of the matter was urged before   the   Sessions  Judges  when  they   recorded   the convictions and sentenced the appellant in the four Sessions Trials. It was not urged before the High Court that the sentences in all  the four cases be made to run concurrently.  If it  had been  urged,  the  decision  might  have  gone  against  the appellant if one 286 considers the remarks of the High Court on the nature of the sentence  in each case.  The High Court considered that  the sentences were inadequate. Learned  counsel for the appellant has not urged that  there is any illegality in the sentences awarded to the  appellant in  the  various Sessions cases or in not  making  them  run concurrently with the sentence awarded in the first Sessions Trial  No.  35  of 1961.  He has, however,  urged  that  the various  acts of criminal breach of trust which  formed  the basis of the convictions took place within a period of a few months,  from  November 19, 1955 to February 23,  1956,  and that  therefore the appellant should have been  charged  for committing  criminal  breach of trust with  respect  to  the total  amount he had misappropriated, in view of s. 222  Cr. P.C.  and  that if he had been so charged,  the  charge  for misappropriating the total amount would have been the charge for  one offence and the appellant would have been tried  on such one charge at one trial and, on conviction, would  have been  awarded  only  one  sentence  which  would  not   have ordinarily exceeded 4 years’ rigorous imprisonment.               Section 222 Cr.  P.C. reads :



             "(1) The charge shall contain such particulars               as  to  the  time and  place  of  the  alleged               offence, and the person (if any) against whom,               or the thing (if any) in respect of which,  it               was committed, as are reasonably sufficient to               give  the  accused notice of the  matter  with               which he is charged.               (2)   When   the  accused  is   charged   with               criminal   breach   of  trust   or   dishonest               misappropriation   of  money,  it   shall   be               sufficient to specify the gross sum in respect               of  which the offence is alleged to have  been               committed,  and  the dates between  which  the               offence  is  alleged to have  been  committed,               without  specifying particular items or  exact               dates,  and  the  charge so  framed  shall  be               deemed  to be a charge of one  offence  within               the meaning of section 234 :               Provided  that the time included  between  the               first and last of such dates shall not  exceed               one year." Sub-section   (2)  is  an  exception  to  meet   a   certain contingency  and  is  not the normal rule  with  respect  to framing  of a charge in cases of criminal breach  of  trust. The  normal rule is that there should be a charge  for  each distinct  offence,  as  provided  in s.  233  of  the  Code. Section 222 mentions what the contents of the charge  should be.  It is only when it may not be possible 287 to  specify exactly particular items with respect  to  which criminal  breach  of trust took place or the exact  date  on which  the individual items were misappropriated or in  some similar contingency, that the Court is authorised to lump up the  various items with respect to which criminal breach  of trust  was  committed  and  to  mention  the  total   amount misappropriated within a year in the charge.  When so  done, the  charge is deemed to be the charge of one  offence.   If several distinct item with respect to which criminal  breach of  trust has been committed are not so lumped together,  no illegality is committed in the trial of those offences.   In fact, a separate trial with respect to each distinct offence of  criminal breach of trust with respect to  an  individual item is the correct mode of proceeding with the trial of  an offence of criminal breach of trust. Learned counsel for the appellant also relied on s. 234  Cr. P.C.  and  urged that three offences of criminal  breach  of trust could have been tried at one trial as s. 234  provides that  when a person is accused of more offences than one  of the  same kind committed within the space of  twelve  months from  the  first to the last of such  offences,  whether  in respect  of the same person or not, he may be charged  with, and tried at one trial for any number of them not  exceeding three.   This  again,  is an enabling provision  and  is  an exception  to  s.  233  Cr.  P.C. If  each  of  the  several offences is tried separately, there is nothing illegal about it.  It may also be mentioned that the total number of items charged in the four cases exceeded three. Lastly,  reference was made, on behalf of the appellant,  to s.  235 Cr.  P.C. and it was urged that all  these  offences were  committed in the course of the same  transaction,  and therefore,  they  should  have  been  tried  at  one  trial. Assuming,  without  deciding, that these offences  could  be said  to  have  been committed in the  course  of  the  same transaction, the separate trial of the appellant for certain specific  offences is not illegal.  This section too  is  an



enabling section. Apart  from  the  fact  that  the  separate  trials  of  the appellant in four cases for committing breach of trust  with respect  to several items was not illegal, there is  nothing on  record to show that the investigating agency had  worked out  all  the  cases of criminal breach of  trust  prior  to prosecuting  the appellant for the offences of which he  was tried at Sessions Trial No. 35 of 1961.  If all the offences had not been worked out prior to that, there could not  have been  a joint trial for all of them even if that could  have been thought to be more reasonable way of proceeding against the appellant. 288 The  fact  that  the first two Sessions Trials  ended  in  a conviction  in January 1962 on commitments made sometime  in 1961  and that the Sessions Trials ending on July  20,  1963 were  on  commitments  made sometime in  1962,  prima  facie indicate that the investigating agency submitted the  charge sheets against the appellant for the offences tried in  1963 after-and possibly long after it had submitted  charge-sheet with respect to the first two cases.  There cannot therefore be  any  design in prosecuting the appellant  for  different offences in four cases. We  are,  therefore,  of  opinion that  there  had  been  no illegality in the Court’s trying the appellant in four cases and  in  not  ordering  the  various  sentences  awarded  in different  Sessions  Trials  to run  concurrently  with  the sentences awarded in Session Trial No. 35 of 1961. It  has  been strongly urged that the total sentence  of  11 years which the appellant has to undergo for committing  the various  offences of criminal breach of trust is severe  and that  if he had been tried for these offences at  one  trial after  taking  advantage  of the provisions of  s.  222  Cr. P.C.,  the  sentence which would have been  awarded  to  him would  not  have  exceeded 4 years, as that  is  the  normal maximum sentence awarded for an offence under s. 409  I.P.C. An  offence  under  s.  409  I.P.C.  is  punishable  up   to imprisonment  for life or imprisonment up to 10 years.   The measure of the sentence is usually governed by the nature of the  offences  committed  and  the  circumstances  of  their commission  and  it cannot be held as a hard and  fast  rule that  a.  sentence  is not to exceed  a  certain  period  of imprisonment when the law has itself laid down the extent up to  which a sentence can be inflicted for a certain  offence and has left discretion to the Court to adjust the  sentence according  to the circumstances of each case.  We  need  not detail  the circumstances of these cases, but  would  simply note that they do not justify taking any lenient view  about the  sentences for the offences committed by  the  appellant who  held  a very responsible position as  Sarpanch  of  the Societies   and  as  such  had  to  deal  with  the   proper disbursement  of  public money for the  purposes  of  public benefit.  He miserably failed in discharging these duties in the manner expected of him.  A deterrent sentence is  always essential  so that others in such responsible Positions  and having occasions to deal with large sums of public money  do not victim to greed and dishonesty. We, therefore, dismiss these appeals.  Appeals dismissed. 289