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PETITIONER: STATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: CHEEMALAPATI GANESWARA RAO & ANR.

DATE OF JUDGMENT: 23/04/1963

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SUBBARAO, K. DAYAL, RAGHUBAR

CITATION:  1963 AIR 1850            1964 SCR  (3) 297  CITATOR INFO :  R          1973 SC2210  (14,24)  F          1975 SC1309  (8,15)

ACT: Criminal  Trial-Joinder of charges  and  persons-Conspiracy, charge of-If illegal after conspiracy fructifies-Examination of accused-Right of accused to examine himself as witness-If duty  of Court to inform accused of  right-Pardon,  legality of-Approver-Refreshing  memory by reference  to  document-If Permissible-Admissibility of evidence-Account Books -Absenee of entries of payments alleged -Code of Criminal  Procedure, 1898  (5  of 1898), ss.  233  to  339,342,337,529,537-Indian Evidence Act. 1872(1 of 1872), ss.5,11,34,159,160.

HEADNOTE: A  and  B were tried together at one trial,  A  of  offences under  ss. 120-B, 409,477-A and 471 read with s. 476  Indian Penal  Code and B of offences under ss. 120-B,409 read  with 109 298 and 471 read with 467 Indian Penal Code.  The Sessions judge who tried them convicted A of all the offences charged and B of  the  first  two  charges.   On  appeal  the  High  Court acquitted  both of them.  The State appealed to the  Supreme Court.   The  respondents contended: (i) that  there  was  a misjoinder  of  charges  and  persons  on  account  of   the cumulative use of the various clauses of s. 239 of the  Code of  Criminal Procedure which was not permissible, (ii)  that no charge of conspiracy could be framed after the conspiracy had fructified, (iii) that the Sessions judge had failed  to inform the accused of their right under 3. 342 ( 4 ) of  the Code  to  examine  themselves as witnesses,  (iv)  that  the pardon had been granted to the approver illegally, (v)  that the  approver  had  been allowed illegally  to  refresh  his memory  by  reference to documents at the time when  he  was examined  before the Court, and (vi) that the account  books of  certain  firms  which  contained  no  entries  regarding payments alleged to have been made to them were inadmissible in evidence. Held that there was no misjoinder of charges and of  accused persons.   It is open to the Court to avail  itself  cumula-

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tively of the provisions of the different clauses of s.  239 of  the Code for the purpose of framing  charges.   Sections 233  to 236 do not override the provisions of s.  239.   But the provisions of ss. 234 to 236 can also be resorted to  in the  case  of a joint trial of several  persons  permissible under s. 239.  Even if there was a misjoinder the High Court was incompetent to set aside the convictions without  coming to   the  definite  conclusion  that  the   misjoinder   bad occasioned failure of justice. Re:  Fankaralapati  Gopala  Rao, A.I.R. 1936 Andhra  21  and T.B. Mukherji v. State, A.I.R. 1954 All. 501, not approved. State  of  Andhra Pradesh v. Kandimalla Subbaiah,  [1962]  2 S.C.R.  194,  K.V. Kriahna Murthy Iyer v. State  of  Madras, A.I.R.  1954  S.C. 406, Willi (William) Slaney v.  State  of Madhya Pradesh. (1955) 2 S.C.R. 1140, Birichh Bhuian v.  The State of Bihar. (1964) Supp. 2 S.C.R. 328. Held  further  that where offences have  been  committed  in pursuance  of  a conspiracy, it is  legally  permissible  to charge  the accused with these offences as well as with  the conspiracy  to  commit  those offences.   Conspiracy  is  an entirely  independent offence and though other offences  are committed  in pursuance of the conspiracy, the liability  of the conspirators for the conspiracy itself cannot disappear.  299 State  of  Andhra Pradesh v. Kandimalla Subbaiah.  (1962)  2 S.C.R. 194, relied on. S, Swamirathnam v. State of Madras, A.I.R. 1957 S.C. 340 and Natwarlal Sakarlal Mody v. State of Bombay, Cr.  A. No.  111 of 1959, dt  19.1.196 1, referred to. Held further, that there was no violation of the  provisions of s. 342 of the Code.  The Sessions Judge had erred on  the side  of  overcautiousness  by  putting  every  circumstance appearing  in  the evidence to the accused.  Copies  of  the questions put to the accused were given to them before hand. Any  point  left over in the questions was  covered  in  the written   statements   filed  by  the  accused.    In   such circumstance   the  length  of  the  questions  or  of   the examination could not prejudice the accused.  Further, there was no duty cast on the Court to inform the accused of their right  under s. 342 (4) to examine themselves as  witnesses. They were represented by counsel who must have been aware of this provision. Held  further,  that the pardon was legally granted  to  the approver  under s. 337 of the Code and was a  valid  pardon. The  offences with which the accused were charged  were  all such in respect of which a pardon could be granted under  s. 337  (1).  The offences under s. 467 read with s. 471  which was  exclusively  triable  by a court of  sessions  and  the offence  under  s. 477-A which was mentioned in s.  337  (1) itself  and thus both fell within the ambit of s.  377  (1). the offence under s. 409. and consequently the offence under s. 120-B also, was punishable with imprisonment for life  or with  imprisonment  not  exceeding  ten  years  and  was  an "offence  punishable with imprisonment which may  extend  to ten  years"  within  the meaning of s.  337  (1).   Further, tinder  G.O.  No. 3106 dated September 9, 1949,  the  Madras Government,  the  power of a District  Magistrate  to  grant pardon was specifically conferred  on  Additional   District Magistrates,   and  the  Additional   District   Magistrate, (Independent) who granted the pardon in the present case was competent to do so. Held  further,  that the Sessions judge  acted  legally  and properly  in  allowing the approver to refresh  his  memory, while deposing, by referring to the account books and  other documents  produced  in the case.  Where a  witness  has  to

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depose   to  a  large  number  of  transactions  and   those transactions  are  referred to or mentioned  either  in  the account  books or in other documents there is nothing  wrong in  allowing the witness to refer to the account  books  and the documents 300 while   questions  are  put  to  him.   Such  a  course   is specifically  permitted  by ss. 19 and 160 of  the  Evidence Act. Held  further,  that the account books of  the  firms  which contained  no  entries with respect to payments  alleged  to have been made were not relevant under s. 34 of the Evidence Act,  as  that  section is applicable  only  to  entries  in account  books  regularly kept and says nothing  about  non- existence  of entries.  But they were relevant under s. I  I of  the  Act  as  the  absence  of  the  entries  would   be inconsistent  with  the receipt of the amounts which  was  a fact in issue.  They were also relevant under s. 5 to  prove the  facts  alleged by the prosecution  that  payments  were never  made to these firms and that those  firms  maintained their  accounts in the regular course of business, and  both these were relevant facts. Queen  Empress  V. Grees Chander Banerjee (1884)  I.L.R.  IO Cal,  1024, and Ram Pershad Singh v. Lakhpati  Koer,  (1902) I.L.R. 30 Cal. 231, referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 39  of 1961. Appeal  by special leave from the judgment and  order  dated January  30,  1960  of the Andhra  Pradesh  High  Court  (in Criminal  Appeals  Nos.  277 and 278 of  1957  and  Criminal Revision Case No. 810 of 1957. A.S.R.  Chari,  K.  R.  Choudhry and  P.D.  Menon,  for  the appellant. Bhimasankaran  and R. Thiagarajan for respondent No.  1.  R. Mahalingier, for respondent No. 2. 1963.  April 23.  The judgment of the Court was delivered by MUDHOLKAR J.-The respondent No. I was tried before the Court of  Sessions,  Visakhapatnam for offences  under  s.  120-B, Indian Penal Code, s. 409, s. 477-A and s. 471 read with  s. 467, I.P.C. while respondent No. 2 was tried for an  offence under  301 s. 120-B and for offences under ss. 409 read with s.   109, 477-A  and  471  read  with  s.  467,  I.P.C.  Each  of  the respondents was convicted of the first two offences, but the respondent  No.  I  alone was convicted  of  the  other  two offences.  Various sentences were passed against them by the Additional Sessions judge, Visakhapatnam, who presided  over the  court.   The respondents preferred appeals  before  the High Court challenging their convictions and sentences.  The State  on  the  other  hand  preferred  an  application  for revision under s. 439, Cr.  P.C. for the enhancement of  the sentences passed on the respondents.  The High Court allowed the two appeals, acquitted the respondents and dismissed the application for revision preferred by the State.  The  State of Andhra Pradesh has come up before this Court in appeal by obtaining special leave under Art. 136 of the Constitution. The  prosecution  case in so far as it is material  for  the decision of this appeal is as follows : In  the  year  1929 the Andhra Engineering  Co.,  which  was originally a partnership firm formed by one D.L.N. Raju  was

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converted   into  a  private  limited,  company   with   its headquarters  at  Visakhapatnam.  (We shall  refer  to  this company throughout as the AECO).  It obtained licences  from the  Government  under  the Electricity Act  for  supply  of electrical  energy  to Visakhapatnam,  Anakapalli  and  some other  places.   As  the AECO did  not  have  the  necessary capital to undertake the work Raju floated in the year  1933 a  public  limited  company  called  Visakhapatnam  Electric Supply  Corporation Ltd., (referred hereafter as VESCO)  and another  in  the year 1936 called  the  Anakapalli  Electric Supply  Corporation Ltd.  The AECO transferred its  licences for  the  supply of electrical energy to  the  consumers  of Visakhapatnam to VESCO and similarly transferred to AECO the licence to supply 302 electrical energy to consumers at Anakapalli.  The AECO  was appointed  Managing  Agent for each  of  these  corporations under separate agreements.  Some time later other industrial concerns, the Andhra Cements Ltd., Vi jayawada and the  East Coast Ceremics, Rajahmurthy were started apparently by  Raju himself-  and the AECO was appointed the Managing  Agent  of each  of  these  concerns.   The  original  managing  agency agreement in favour of AECO with respect to VESCO was for  a period  of  15 years i.e., from 1933 to 1948 and  was  later renewed  for  the  remaining term of  the  currency  of  the licence granted by the Government under the Electricity Act. A  mention  may be made of the fact that in June,  1952  the VESCO  undertaking was acquired by the Government under  the provisions of the "’Electricity Undertaking Acquisition Act" but nothing turns on it. The VESCO had its own Board of Directors while the AECO  had also its own separate Board of Directors.  The VESCO had  no Managing  Director  but  at each meeting  of  its  Board  of Directors one of the Directors used to be elected  Chairman. The same practice was followed at the meeting of the general body of the shareholders.  The AECO on the other band always had a Managing Director, first of whom was D.L.N. Raju.   He died in the year 1939 and was succeeded by R.K.N.G. Raju, an Advocate  of  Rajahmundry.  This person,  however,  did  not shift to Visakhapatnam on his becoming the Managing Director but  continued  to  stay most of the  time  at  Rajahmundry. According  to  the  prosecution  both  these  concerns  were running  smoothly  and efficiently during  the  lifetime  of D.L.N.  Raju  because he was personally attending  to  their affairs.   His successor, however, apart from the fact  that be  continued to be staying mostly at Rajahmundry, was  also interested  in  several other ventures,  including  a  sugar factory at Dewas in Central India.  303 Eventually many of those ventures failed.  According to  the prosecution  the  second Raju was not  bestowing  sufficient care and attention on the affairs of VESCO. The  AECO as Managing Agents of VESCO had appointed  in  the year  1939 one D.V. Appala Raju, a trusted employee, as  its representative and as the secretary of VESCO.  In 1944  this person  resigned from his appointments and started  his  own business  in  radio and electrical goods in the name  of  D. Brothers.  He was succeeded by T. Visweswara Rao, P.W. 6, an employee of the AECO. The respondent No. 1, Ganeswara Rao was also an old employee of  AECO,  having been appointed a stenotypist in  the  year 1923  on  an initial salary of Rs. 40/- p.m.  Eventually  he became  the  Head Clerk therein.  He pressed his  claim  for appointment as Secretary of VESCO and representative of  the Managing Agents at Visakhapatnam and R .H.G. Raju  appointed

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him to that post.  All this is not disputed.  The respondent No.  1,  even after his appointment on two  posts  connected with  VESCO,  continued  to work with the  AECO  also  whose business had by then been confined only to that of  Managing Agents of the four companies floated by D.L.N. Raju. It  is the prosecution case that as Secretary of  VESCO  and the  resident  representative of the  Managing  Agents,  the respondent No. I was attending to the day to day affairs  of VESCO, which included the receiving of all sums of money due to VESCO, spending money for the purpose of VESCO  attending to the appointment, supervision and control of the staff  of VESCO,  purchasing  materials required for  the  purpose  of VESCO  and supervising over the accounts of VESCO.   He  was thus all important with respect to the every day affairs of 304 VESCO.   His dual capacity enabled the respondent No.  I  to earn  the confidence not only of the Directors of  AECO  but also  of  those of VESCO.  The accounts  maintained  by  the VESCO used to be explained by him not only to the  Directors but  also  to  the  shareholders.   The  knowledge  of   the Financial  position  of VESCO obtained by them  used  to  be derived essentially from the respondent No. 1. As  Secretary of  VESCO  it was his duty to convene the  meetings  of  the Board  of Directors, to present before them  the  periodical statement  of receipts and expenditure of VESCO, to  convene meetings  of  the  General Body,  to  prepare  the  Managing Agents’  report and the Director’s report as also to see  to the  presentation of auditors’ report and the  statement  of accounts.   The explanations of the Managing Agents and  the Directors  of VESCO with respect to the items  mentioned  in the orders of the Board used also to be placed by him before the shareholders.  It was also his duty to have the accounts of VESCO audited by the auditors elected by the general body and  to produce before the auditors the  relevant  accounts, vouchers, bank statements and so on. There were no complaints about the management of the affairs of  VESCO or the AECO till the end of 1946 or the  beginning of  1947.   One significant fact,  however,  which  occurred prior to 1946 - is referred to by the prosecution.  Till the -year  1945  Messrs  C. P. Rao & Co., a  firm  of  Chartered Accountants  were  the  auditors  of  VESCO  but  after  the respondent No. I became Secretary. one B. Rajan was  elected Auditor  not  only  for VESCO but for  all  the  other  four concerns,  including  AECO.   This person  was  Auditor  for Greenlands  Hotel at Visakhapatnam, of which the  respondent No. I was a Director. R.K.N.G. Raju took till towards the end of 1947 and died  at Madras in April, 1948.  According  805 to  the  prosecution  the respondent No. I  wanted  to  take advantage  of  this  fact  and conceived  of  a  scheme  for misappropriating  as  much  money  belonging  to  VESCO   as possible  before the managing agency agreement of AECO  came to  an end in October, 1948.  The respondent No.  I  secured the   promotion  of  the  approver  K.V.  Ramana,  who   was originally Accounts Clerk to the post of Senior  Accountant. Similarly K. V. Gopala Raju was transferred from the post of Stores Clerk to the general department and K.S.N. Murty, the discharged accused, was appointed Stores Clerk in his place. Later,  however,  Murty  was also  got  transferred  to  the general  section  and replaced by P. W.  18,  Srinivasa  Rao originally a stores boy. The  approver who was originally an Accounts clerk with  the AECO was, it may be mentioned, appointed a cashier in  VESCO in 1946 at the instance of the respondent No. I and was thus

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beholden to him.  He was later promoted as Senior Accountant and  in his place the respondent No. 2  Laksbminarayana  Rao was appointed the Cashier.  According to the prosecution the respondent No. I took both the approver and  Lakshminarayana Rao in his confidence as also some other persons "known  and unknown" for carrying out his nefarious purpose, namely, the misappropriation   of   the  funds  of  VESCO   during   the subsistence  of  AECO’s  managing  agency  of  VESCO.    The conspiracy is said to have been hatched in the year 1947 and falsification  of accounts and misappropriation of funds  of VESCO went on till the end of the accounting year.  The term of  the  managing agency was renewed in 1943 and  AECO  con- tinued to be managing agents until the VESCO was taken  over by  the Government in 1952.  The respondent No. I  continued to be the Secretary of VESCO and resident representative  of the Managing Agents throughout the period of conspiracy. 306 After the death of R.K.N.G. Raju, it was discovered that the AECO  was  indebted to many concerns which  were  under  its managing agency, the liability being shown either as that of AECO or that of R.K.N.G. Raju personally.  Again, the  VESCO was  shown as indebted to the Andhra Cement,; to the  extent of Rs. 42,000/-.  This amount was, however, paid by the AECO from  the funds of VESCO.  The respondent No. I and some  of his friends were in search of a rich and substantial man who would  be  amenable  to them to fill the  post  of  Managing Director  of  AECO.  Eventually their choice fell on  G.  V. Subba  Raju,  P. W. 25, a resident of Manchili, who  held  a large  number  of shares in the AECO and who  was,  besides, related to R.K.N.G. Raju by marriage.  It is said that  this person has not received much education and knows only bow to sign his name in English.  He was assured that by consenting to become the Managing Director be would not be required  to discharge onerous duties and that the respondent No. I would look  to  all the affairs of VESCO.  He was also  told  that apart from signing important papers which may be sent to him by  the  respondent No. I from time to time to  Manchili  or wherever  be might be would have no work to do.   He  agreed and  was elected Managing Director of AECO in the middle  of 1948.   Upon  this understanding he  accepted  the  position offered to him. The  VESCO used to receive large amounts of money from  high tension  power  consumers  such  as  the  railways,  K.   G. Hospital,  the  Port Administration, the  Andhra  University etc., by cheques.  But domestic consumers usually paid their bills  in cash to the bill collectors who used to hand  over their  collections to the respondent No. 2.  The  respondent No.  2  was  asked by the respondent No.  I  to  maintain  a private note book.  In "that book payments which used to  be made by respondent No. 2 on the  307 basis  of  slips  issued  by the  respondent  No.  I  (which included  payments to his relatives or to business firms  in which he was personally interested) used to be noted and the amount  totalled up at the end of the day.  This amount  was posted   in  VESCO’s  Cash  Handover  Book  as  "’by   safe" indicating that this amount was kept in the safe, though  in fact  it  was  not.   On the basis of  the  entries  in  the Handover  Book  the  final accounts were  written  up.   The respondent No. I opened four personal accounts in  different banks,  including the Imperial Bank of India (as  the  State Bank  then was).  When the respondent No. I had to  issue  a personal  cheque  on any of these Banks he used to  ask  the second  respondent to send an equivalent amount to the  Bank concerned for being credited to his account.  These  amounts

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also  used to be noted in the private note book and  entered "by safe’ in the Handover Book. Another  thing  which  the respondent No.  I  initiated  was opening a heading in the ledger called "advance purchase  of materials."  Amounts which had been misappropriated used  to be  posted therein though in fact no orders were placed  for any  material.  It may be mentioned that Subba Raju used  to visit  Visakhapatnam twice a month and check up the  account books.   At that time it used to be represented to him  that the amounts which were shown to be in the safe and not found therein  (but which were actually misappropriated) had  been sent to the Bank for being deposited.  Apparently Subba Raju was  fully satisfied with this and other  explanations  and, therefore, he appointed one C. S. Raju, who was the  Manager of  Andhra Cements to supervise over the affairs  of  VESCO. Apparently because of this a new method of  misappropriation was  adopted  by the respondents by starting  in  the  VESCO account books, an account called "suspense account".  A lakh of  rupees passed through that account.  Amounts which  were misappropriated used to find their way in this 308 account.   A  new  cash  book was also  said  to  have  been prepared by the conspirators with the object of covering  up the misappropriations which had been made. Subba Raju was not satisfied with the nature of  supervision exercised by C. S. Raju over the affairs of VESCO because he used  to look only at the cash book entries of the  days  on which he paid visits to VESCO’s office, to which he used  to go  with  previous intimation.  Besides that, C.  S.  Raju’s management  of Andhra Cements had landed it into a  loss  of Rs.  30,000/-‘.   Because of all these things he had  C.  S. Raju  replaced  towards  the end of the  year  1951  by  one Subbaramayya,  a  retired Finance Officer  from  the  Madras Electricity  Board both as a Director of Andhra Cements  and as  a Supervisor over the accounts of  VESCO.   Subbaramayya took  his  work seriously and called for  information  on  a number of points from the respondent No. 1. He, however, was unable  to  obtain  any information.  In  January,  1952  he therefore  brought  one  S. G. Krishna Aiyar  who  had  vast experience  in  the maintenance of  accounts  of  electrical undertaking’s  having  been Chief Accountant  of  the  South Madras   Electric  Supply  Corporation,  to   undertake   an investigation and then to act as Financial Adviser. In the meantime on November 29, 1951 there was a meeting  of the  General  Body at which the accounts were,  among  other things,  to be considered.  There was a considerable  uproar at  that meeting because the respondent No. 1 said that  the Auditor’s  report had not been received.   The  shareholders felt  that  the  report  had been  received  but  was  being suppressed  or deliberately withheld.  However, the  meeting was  postponed and eventually held on December 9, 1951.   On that date the respondent No. 1 produced the auditor’s report (Ex.  p.  234  of  which Ex.  P. 235  is  a  printed  copy). According to  309 the  prosecution the report is a forged document.  That  was also  the feeling-of a number of shareholders who wanted  to see  the  original  but one Dutt who  was  Chairman  of  the meeting after seeing Ex.  P. 234 said that the report seemed to be a genuine one. S.   G.  Krishna  Aiyar after his  appointment  in  January, 1952,  made close enquiry and submitted an  interim  report. That  report  showed  that during  the  period  1948-49  Rs. 33,271-10-0 shown as paid to the Andhra Power System were in fact  not  paid.   The respondent No. 1 on  being  asked  to

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explain  said  that  he would give his  explanation  to  the Managing Director.  The  Interim  Report showed  that  there was  a  shortage of about Rs. 90,000/- for this  period.  On February 12, 1952 the respondent No. I wrote to the Managing Director  admitting  his responsibility and agreed  to  make good the amounts found short or such other amounts as  would be  found  short  up to the end  of  March,  1952.   Further scrutiny  of the accounts was being carried out  by  Krishna Aiyar  and in his subsequent report he pointed out that  Rs. 2,38,000/-  which  were  shown as having been  paid  to  the Andhra Power System had actually not been paid.  In fact  in April,  1952  the Collector attached  VESCO  properties  for realising this amount.  On April 30, 1952 the respondent No. 1,  by  selling  some  of his  property,  himself  paid  Rs. 50,000/-  to the Andhra Power System towards the sum due  to it  from VESCO and had promised to pay the  balance  shortly thereafter.  He was given time for doing so but he failed to pay it. The Directors of VESCO thereafter authorised K. S. Dutt, one of the Directors to lodge a complaint with the police  which he accordingly lodged on May 19, 1952.  On the next day  the police  placed  an  armed guard around  the  office  of  the respondent No. I and seized a number of papers.  As a result of   investigation  they  found  that  there  was  a   total misappropriation 310 of Rs. 3,40,000/-.  On May 13, 1954 a chargesheet was  filed against  the  two  respondents  as well  as  Murti  and  the approver  Ramana.  OD September 13, 1954 Ramana  offered  to make a full Confession to the Additional District Magistrate (Independent) who was empowered to grant pardon under s. 337 of  i he Code of Criminal Procedure.  He, however,  directed Ramana  to make his confession before a SubMagistrate.   The latter  accordingly made a confession on November  15,  1954 and on November 17, 1954 the Additional District  Magistrate (Independent) granted him pardon and that is how he came  to be examined as a witness in this case. As  already stated, the Additional Sessions judge  convicted both  the  respondents, the respondent No. I in  respect  of each head of the offences with which he was charged and  the respondent  No.  2  in  respect  only  of  the  offences  of conspiracy  and misappropriation.  The High Court set  aside the  conviction of the respondents on a number  of  grounds. In the first place according to the High Court, joint  trial of  two  or more persons in respect  of  different  offences cornmitted by each of them is illegal and that here as  they were charged with having committed offences under s.  120-B, s.  409, s. 477-A and s. 476/467, I.P.C. they could  not  be tried  jointly.   According to it the provisions of  s.  239 were of no avail.  Next according to the High Court even  if s. 239 is applicable its provisions are subject to those  of s.  234  and  as such the trial being for  more  than  three offences  was  impermissible.  Then according  to  the  High Court offences under. s. 409 and s. 471/467 are of different kinds  and are not capable of joint commission.   Therefore, they could not be jointly tried.  Further, according to  the High  Court  where a conspiracy has yielded its  fruits  the conspirators  can  be  charged  with  the  actual   offences committed and not with conspiracy to commit those  offences. Charge  of conspiracy, according to the High Court,  can  be validly made  311 only when the prosecution establishes that every conspirator expected to receive a personal benefit from it and that  the prosecution  has  not  been  able  to  establish  that   the

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respondent  No.  2 or the approver evidently  had  any  such expectations  since  they  did  not  in  fact  receive   any corresponding benefit.  In so far as the respondent No. 2 is concerned the High Court has held that since he was  charged with  a specific offence under s.409 I.P.C. he could not  be convicted  of mere abetment of an offence.   The  approver’s evidence  was  held  by the High Court  to  be  inadmissible because  the  pardon granted to him was illegal.   The  High Court  has  also held that his evidence  is  unreliable  and further  that the Additional Sessions judge was in error  in allowing  him to refresh his memory by referring to  various documents  in  a  manner  not permitted by  s.  159  of  the Evidence  Act.   The  High Court  has  further  stated  that inadmissible evidence was taken on record by the  Additional Sessions   judge,  namely,  account  books   of   Billimoria Brothers,  maintained  in  Gujrati  and  further  that   the Additional  Sessions  judge  was in error  in  allowing  the prosecution  to  use those account  books  for  establishing absence  of entries with regard to certain payments  alleged in the VESCO books to have been made to them.  Finally,  the High Court held that the examination of the respondent under s.  342 of the Code was unfair for a number of  reasons  and that the Additional Sessions judge had failed to perform  an important duty in that he did not call the attention of  the respondents  to  the provisions of s. 342  which  enable  an accused person to give evidence in his own behalf Mr.  Bhimasankaram,  appearing  for  the  two   respondents, however, has not sought to support the judgment of the  High Court  on all these points.  The points which he  urged  are briefly these:               (1)   That  there was a misjoinder of  charges               and persons in that the various provisions               312               of s. 239 were clubbed together and an omnibus               charge  of conspiracy was framed which on  its               face   was   one  likely  to   embarrass   the               respondents  and make their task of  defending               themselves difficult.               (2)   The procedure adopted in the  investiga-               tion and committal stages was irregular.               (3)   Irrelevant  evidence was introduced  and               some  evidence was introduced in a manner  not               authorised by the Evidence Act.               (4)   That  the Court abused its powers  under               s.342,   Cr.    P.C.  while   conducting   the               examination of the respondents.               (5)   The   evidence  of  the   approver   was               inadmissible because the pardon granted to him               was   illegal,  that,  in  any  case,  it   is               unreliable, was so found even by the  Sessions               judge  and must, therefore, be  rejected.   If               the  evidence of the approver is left out  the               remaining  evidence  would  be  inadequate  to               sustain the prosecution case. We  shall deal with Mr. Bhimasankaram’s contentions  in  the order in which we have set them out.  The first question for consideration  is whether there was a misjoinder of  parties and  of  persons.  The first charge is  in  respect  of  the conspiracy  alleged  to have been entered into  by  the  two respondents,  K. V. Ramana, the approver, and others  "known and unknown" to commit criminal breach of trust of the funds of  VESCO and, in order to screen its detection, to  falsify the  accounts  of  VESCO  and to  use  forged  documents  as genuine.   On  the face of it this is a valid  charge.   But certain objections have been taken to it with which we  will

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deal at the  313 appropriate  place.  The second charge is for an offence  of criminal  breach  of trust punishable under s. 409  and  the accusation  therein is that the two respondents  along  with Ramana,  misappropriated  69 items aggregating to  a  little over Rs. 3,20,000/-.  It is clear from the charge that  some of the amounts were misappropriated between April, 1947  and March, 1950, some between April, 1947 and March, 1949,  some between April, 1947 and March, 1951 and quite a large number between  September, 1947 and March, 1950 and a  still  large number  between  April, 1951 and March, 1952.   It  is  thus apparent that offences committed within a space of 12 months were tried along with offences committed beyond that period. Unless,  therefore, the provisions of s. 239 are  applicable it would follow that there was a misjoinder of charges.  The third  charge  is that the two respondents, along  with  the approver Ramana made false entries on seven different  dates in  the account books between September 19, 1947  and  March 18,  1952  and  thus committed an offence  under  s.  477-A, I.P.C. The fourth charge is that the two respondents,  along with  the approver Ramana forged six documents on  different dates between March 28, 1949 and November 12, 1951 and  thus committed  an offence under s. 471 read with s. 467,  I.P.C. As  we have pointed out earlier the respondent No.  I  alone was convicted by the Additional Sessions judge in respect of the third and fourth charges. Mr.  Bhimasankaram  supports the reason given  by  the  High Court  for  coming  to  the  conclusion  that  there  was  a misjoinder  of  charges.  The main reasons  upon  which  the conclusion of the High Court is based are firstly that there could  be  no  clubbing together of the  provisions  of  the various clauses of s. 239 and secondly that the  respondents were charged with more than three offences of the same  kind and that this was in contravention of s. 239 (c).  In coming to the conclusion that the 314 provisions  of various clauses of s. 239 cannot  be  applied cumulatively the High Court has relied upon the decision  in Re: Vankavalapati Gopala Rao (1).  There the learned  judges have held thus:               "These clauses are mutually exclusive and they               cannot   be  simultaneously  applied  and   to               construe  them  as  supplementing  each  other               would   be   enlarging  the   scope   of   the               exceptions.   Each clause is an  exception  to               the general rule enacted in s. 233, Cr.   P.C.               If  such  a combination  is  permissible,  all               persons accused of offences described in  cls.               (a)  to (g) can be tried together in one  case               which   certainly   involves   a   bewildering               multiplicity   of  charges  and  which   would               obviously set at naught the salutary principle               contained in s. 233." (p. 24) In  support  of this view the High Court in  that  case  has relied upon the decision in T. B. Mukherji v. State (2 ) and referred  to the decision in Singarachariar v.  Emperor  (3) and D. K. Chandra v. The State(,). Before considering these decisions it will be useful to look at  the  scheme  of  Chapter XIX of  the  Code  of  Criminal Procedure which deals with the charge.  The chapter is split up  into two sub-heads, ’-Form of charges" and  "Joinder  of charges." Sections 221 to 232 are comprised under the  first sub-head and ss. 233 to 240 in the second.  Sections 221  to 223  deal  with the framing and content of  charge.  s.  224

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deals with the interpretation of the language of the  charge and  s.  225  with  the effect  of  errors  in  the  charge. Sections  226 to 231 deal with the power of the  court  with regard to framing and altering charges and the procedure  to be  adopted  at  the trial where a charge  is  found  to  be defective or there is no charge or where a new charge is  to be (1)  A.I.R. 1956 Andhra 21. (2)  A.I.R. 1954 All. 501. (3)  A,I,R, 1934 Mad 673. (4)  A,I.R. 1952 Bom.. 177.  F.B,  315 framed.  Section 232 deals with the power of the.  appellate court  or  the High Court when it discovers  that  there  is material  error  in the charge.  Then we come to  the  other sub-head  of  this chapter.  Section 233 provides  that  for every distinct offence of which any person is accused  there shall  be a. separate charge.  It thus lays down the  normal rule  to  be followed in every case.  But it  also  provides that this will be subject to the exceptions contained in SS. 234, 235, 236 and 239.  The first three provisions relate to the  framing  of charges against a  single  accused  person. Section  234  (1)  deals  with the trial  of  a  person  for offences  of  the same kind not  exceeding  three  committed within the space of 12 months from the first to the last  of such offences and s. 231 (2) what is meant by the expression ’offences   of’  the  same  kind’.   This  provision   lifts partially the ban on the trial of a person for more than one offence at the same trial.  Section 235(1), however, goes  a step  further  and permits the trial of a  person  for  more offences  than one if they are so connected together  as  to form the same transaction.  Thus under this provision if the connection  between the various offences is established  the limitations  placed by s. 234(1) both as regards the  number and the period during which the offences are alleged to have been committed will not apply.  Full effect cannot  possibly be given to this provision if we hold that it is subject  to the limitation of s.234(1). Sub-section (2) of S. 235  deals with  a case where an offence falls within  two  definitions and  sub-s.(3) deals with a case in which a number  of  acts are  alleged  against  an  accused  person,  different  com- binations of which may constitute different offences.   Then we  come  to s. 236 which provides that if a single  act  or series of acts is of such a nature that it is doubtful which of  several  offences  the facts which can  be  proved  will constitute, the accused may be charged with having committed all  or any of such offences and further provides  that  any number of such 316 charges may be tried together.  It also permits that charges could be framed against an accused person in the alternative if the court thinks fit.  Thus, this is a special  provision available  in  case of doubt and is neither subject  to  the limitations  prescribed  by s. 233 nor those  of  the  other preceding provisions. Now,  if  the  respondent No. 1 were alone  tried  upon  the second,  third and the fourth charges the provisions  of  s. 235(1)  could  have been pressed in aid if  the  allegations were that the offences were so connected together as to form one  and the same transaction and the validity of the  trial would  not have been open to any attack.  Similarly  if  the second respondent were alone tried on the second charge  his trial  would  not  have been open to any  objection  if  the allegation were that the offences were so connected together as  to form the same transaction.  Here, however, we have  a

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case   where   the  prosecution  alleges  that   there   was additionally  a  conspiracy  to which  apart  from  the  two respondents the approver and some other persons were parties and  where in both the respondents were tried  together.   A conspiracy  must be regarded as one transaction and,  there- fore,  a  single individual charged with it could  be  tried with the aid of s. 235(1) for all the acts committed by  him in furtherance or in pursuance of the conspiracy without the limitations imposed by s.234(1). For, where all the acts are referable  to the same conspiracy their connection with  one another is obvious. The only provision in the Code which permits the joint trial of more than one person is s. 239 and what we have to see is whether under that provision the two respondents could  have been  jointly  tried for the offences with which  they  were charged.  Let us, therefore, examine closely the  provisions of  317 s.   239.   It will be useful to set out the  provisions  of that section which run thus :               "  The  following persons may be  charged  and               tried together, namely:-               (a)   persons  accused  of  the  same  offence               committed   in   the  course   of   the   same               transaction;               (b)   persons  accused of an offence and  per-               sons accused of abetment, or of an attempt  to               commit such offence;               (e)   persons accused of more than one offence               of the same kind within the meaning of section               234  committed  by  them  jointly  within  the               period of twelve months;               (d)   persons  accused of  different  offences               committed   in   the  course   of   the   same               transaction;               (e)   persons  accused  of  an  offence  which               includes   theft,   extortion,   or   criminal               misappropriation,   and  persons  accused   of               receiving  or retaining, or assisting  in  the               disposal    or   concealment   of,    property               possession  of which is alleged to  have  been               transferred  by any such offence committed  by               the first-named persons, or of abetment of  or               attempting   to  commit  any  such   1st-named               offence;               (f)   persons  accused of offences under  sec-               tions 411 and 414 of the Indian Penal Code  or               either of those sections in respect of  stolen               property the possession               318               of which has been transferred by one  offence;               and               (g)   persons  accused  of any  offence  under               Chapter XII of the Indian Penal Code  relating               to  counterfeit coin, and persons  accused  of               any  other  offence  under  the  said  Chapter               relating  to the same coin, or of abetment  of               or attempting to commit any such offence;               and  the  provisions contained in  the  former               part of this Chapter shall, so far as may  be,               apply to all such charges." This first thing to be noticed is that s. 239 does not  read as if its various clauses can be applied only alternatively. On the other hand at the end of cl. (f) there      is      a conjunction  ’and’.  If the intention of the Legislature was

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that the provisions of these clauses    should be  available only alternatively it would have used the word "or" and  not "and"   which  has  the  opposite  effect.    Grammatically, therefore,  it  would  appear that  the  provisions  of  the various  clauses are capable of being applied  cumulatively. The opening words of the section show that it is an enabling provision  and,  therefore, the Court has  a  discretion  to avail itself cumulatively of two or more clauses.  Of course a  Court  has  the  power to  depart  from  the  grammatical construction  if  it  finds that  strict  adherence  to  the grammatical   construction  will  defeat  the   object   the Legislature  had in view.  The concluding portion of s.  239 shows  that the provisions contained in the former  part  of Chapter  XIX shall, as far as may be, apply to  the  charges framed  with  the aid of s. 239.  Does this  mean  that  the provisions  of  s.  233,  234, 235, and  236  must  also  be complied  with?   Obviously, s. 233 does  not  override  the provisions of s.    239.    Section  234  cannot   also   be regarded as an 319 overriding  provision because reading it that way will  lead to the clear result that whereas several accused persons can be  charged at the same trial with any number  of  different offences  committed  by  them  in the  course  of  the  same transaction  they cannot be tried also for -offences of  the same  kind exceeding three in number and committed beyond  a space of 12 months from the first to the last.  It could not have been the intention of the Legislature to create such  a situation.   Again,  as already stated, s. 234(1)  does  not override the provisions of s. 235(1) which permits trial  of a  person  for more offences than one committed  during  any period  provided they are so connected together as  to  form one transaction.  Unless we read s. 234(1) as not enacting a fetter  on  s. 235(1), it may not be possible to  give  full effect  to  the  latter.  Now, since  s.  234(1)  cannot  be properly  read a,,; overriding s. 235(1) there is  no  valid reason for construing it as overriding the provisions of  s. 239  either.   There are also other reasons which  point  to this conclusion which we will set out while considering  the argument advanced by Mr. Bhimasankaram. Mr.  Bhimasankaram  contended that s, 239 must  be  read  at least subject to ss. 234(1) and 235(1) on the ground that if there are certain restrictions with respect to the trial  of a  single accused there is no reason why those  restrictions will  disappear  if an accused person is  tried  along  with several  other  persons.   Thus he  points  out  that  where several persons are accused of more offences than one of the same  kind committed by them jointly within a period  of  12 months, the number of offences for which they could be tried cannot exceed three.  In this connection he relied upon  the words "within the meaning of s. 224" occurring in cl. (c) of s.  239.  These words, he contended, clearly show  that  cl. (c)  of s. 239 is subject to the provisions of s.  234.   In our  opinion  the  words " within the  meaning  of  s.  234" indicate  that  what was meant by the words offence  of  the same kind" 320 in  cl. (c) of s. 239 is the same thing as was meant by  the identical  expression  used in s. 234(1) and defined  in  s. 234(2)  and  nothing more.  If it was the intention  of  the Legislature to provide that the number of offences for which several  accused persons could be tried under cl. (c) of  s. 239 should be limited to three as provided in s. 234(1), the Legislature would either have Said "’persons accused of more offences  than one of the same kind not exceeding  three  in

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number"  or may have used the words "person accused of  more than one offence of the same kind to the extent  permissible under  s.  234".   Language of this  kind  would  have  made perfectly  clear  that cl. (c) of s. 239 was subject  to  s. 234(1).   As  already stated, if s. 239(c) is  construed  as being subject to s. 234(1), there would be this anomaly that whereas  the same accused person could be charged  with  and tried jointly for any number of offences of different  kinds committed by them, for more than three offences of the  same kind  committed  by  them jointly there will have  to  be  a separate  trial with respect to such offences.  Surely  such could  not have been the intention of the legislature.   The object  of  enacting  s. 239 was to  avoid  multiplicity  of trials  and  the  only limitation which  could  properly  be placed on the trial of several persons for the same kind  of or different offences would be that which considerations  of justice  and  fairness  would require.   No  doubt,  such  a construction would also give rise to the result that whereas so far as the trial of a single accused person is  concerned the  charges must be limited to three offences committed  by him within the space of 12 months from the first to the last of  such  offences, there would be no such  limitation  when along with that accused person there are one or more persons who  have jointly committed those offences.  The reason  for this  possibly  is  that the Legislature  did  not  want  to differentiate  between cases where any number  of  different offences  were committed jointly by a group of persons  from cases where any number  321 of  offences of the same kind were committed by a  group  of persons. According  to  Mr. Chari s. 235(1) cannot  be  construed  as having  an  overriding effect on s. 239 because  whereas  it contemplates acts so connected together as to form the  same transaction  resulting in more offences than one, s.  239(d) contemplates  offences committed in the course of  the  same transaction  and nothing more.  The question is whether  for the purposes of s. 239(d) it is necessary to ascertain  any- thing  more  than  this that  the  different  offences  were committed  in the course of the same transaction or  whether it  must  further  be  ascertained  whether  the  acts   are intrinsically  connected with one another.  Under s.  235(1) what has to be ascertained is whether the offences arise out of   acts  so  connected  together  as  to  form  the   same transaction,  but  the words "so connected  together  as  to form"  are not repeated after the words "’same  transaction" in s. 239.  What has to be ascertained then is whether these words are also to be read in all the clauses of s. 239 which refer  to the same transaction.  Section 235(1), while  pro- viding  for  the  joint trial for  more  than  one  offence, indicates that there must be connection between the acts and the  transaction.   According to this provision  there  must thus  be a connection between a series of acts before,  they could be regarded as forming the same transaction.  What  is meant  by "same transaction" is not defined anywhere in  the Code.   Indeed,  it  would always  be  difficult  to  define precisely what the expression means.  Whether a  transaction can  be regarded as the same would necessarily  depend  upon the particular facts of each case and it seems to us to be a difficult  task to undertake a definition of that which  the Legislature  has deliberately left undefined.  We  have  not come  across  a  single  decision of  any  Court  which  has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or

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322 unity  of  purpose  and design or continuity  of  action  in respect  of  a series of acts, it may be possible  to  infer that  they  form  part  of the  same  transaction.   It  is, however,  not  necessary that every one  of  these  elements should  co-exist  for a transaction to be  regarded  as  the same.   But  if several acts committed by a  person  show  a unity   of  purpose  or  design  that  would  be  a   strong circumstance  to indicate that those acts form part  of  the same  transaction.  The connection between a series of  acts seems to us to be an essential ingredient for those acts  to constitute  the  same transaction and, therefore,  the  mere absence  of the words "so connected together as to from"  in cl. (a), (c) and (d) of s. 239 would make little difference. Now,  a  transaction may consist of an isolated act  or  may consist  of  a  series of acts.  The series  of  acts  which constitute a transaction must of necessity be connected with one  another and if some of them stands  out  independently, they  would not form part of the same transaction but  would constitute   a   different  transaction   or   transactions. Therefore, even if the expression "’same transaction"  alone had been used in s. 235(1) it would have meant a transaction consisting either of a single act or of a series of  connec- ted  acts.  The expression "same transaction"  occurring  in cls. (a), (c) and (d) of s. 239 as well as that occurring in s.  235(1) ought to be given the same meaning  according  to the normal rule of construction of statutes.  Looking at the matter  in  that  way, it is pointless  to  inquire  further whether the provisions of s. 239 are subject to those of  s. 236(1).  The provisions of sub-s. (2) and (3) of s. 235  are enabling provisions and quite plainly can have no overriding effect.   But  it would be open to the court  to  resort  to those  provisions  even  in the case of  a  joint  trial  of several persons permissible under s. 239. Section  236 is also an enabling provision to be availed  of in case of doubt and it is meaningless to say that s. 239 is subject to s. 236. ]Bearing in  323 mind  the fact that the provisions in the "former  part"  of Chapter  XIX are applicable to charges made with the aid  of s.  239  only "so far as may be" it would not  be  right  to construe  s. 239 as being subject to the provisions  of  ss. 233  to  236.   It  was contended  by  Mr.  Chari  that  the expression  "former  part"  would apply to  the  first  sub- division  of  chapter  XIX which deals  with  the  form  and content  of  the charges and the powers of  the  court  with regard  to the absence of charge and alteration  of  charge. We  cannot, however, give the expression such  a  restricted meaning.   For,  even  in the absence of  those  words,  the earlier provisions could not have been ignored.  For, it  is a rule of construction that all the provisions of a  statute are to be read together and given effect to and that it  is, therefore,  the  duty  of the Court to  construe  a  statute harmoniously.   Thus,  while it is clear that  the  sections preceding s. 239 have no overriding effect on that section,, the courts are not to ignore them but apply such of them  as can  be  applied without detracting from the  provisions  of S.239. Indeed, the very expression ’so far as may be’ empha- sises the fact that while the earlier provisions have to  be borne in mind by the Court while applying s. 239  it is  not those  provisions  but  the  latter  which  is  to  have  an overriding effect. Apart from this, the question whether the provisions of  ss. 233  to 236 have or have no overriding effect on s.  239  is not strictly germane to the question considered by the  High

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Court  that is, clubbing together all the provisions of  the various  clauses of s. 239.  Whether they can or  cannot  be read cumulatively must be determined by consideration of the language  used in those clauses.  We have already  indicated how  those  clauses may be grammatically read.  On  a  plain construction  of the provisions of s. 239, therefore, it  is open  to  the  Court to avail  itself  cumulatively  of  the provisions  of  the  different clauses of  s.  239  for  the purpose of framing charges 324 and charges so framed by it will not be in violation of  the law, the provisions of ss. 233, 234 and 235 notwithstanding. The decision of the Allahabad High Court in T. R. Mukherji’s case (IL), is directly in point and is  clearly    to    the effect that the different clauses of s. 239   are   mutually exclusive  in the sense that it is not possible  to  combine the provisions of two or more clauses in any one case and to try   jointly  several  persons  partly  by   applying   the provisions  of  one clause and partly by applying  those  of another  or other clauses.  A large number of  decisions  of the different High Courts and one of the Privy Council  have been considered in this case.  No doubt, as has been rightly pointed out in this case, separate trial is the normal  rule and  joint trial is an exception.  But while this  principle is  easy to appreciate and follow where one person alone  is the accused and the interaction or intervention of the  acts of  more persons than one does not come in, it would,  where the  same act is committed by several persons, be  not  only inconvenient but injudicious to try all the several  persons separately.  This would lead to unnecessary multiplicity  of trials  involving avoidable inconvenience to  the  witnesses and  avoidable  expenditure of public time  and  money.   No corresponding advantage can be gained by the accused persons by  following  the  procedure of  separate  trials.   Where, however, several offences are alleged to have been committed by  several  accused persons it may be  more  reasonable  to follow the normal rule of separate trials.  But here, again, if  those offences are alleged not to be wholly  unconnected but  as  forming  part  of the  same  transaction  the  only consideration that will justify separate trials would be the embarrassment or difficulty caused to the accused persons in defending themselves.  We entirely agree with the High Court that joint trial should be founded on some ’principle’.  But we find it difficult to appreciate what seems to (1)  A. I. R. 1954 All. 501.  325 be  the view of the High Court that because each ‘clause  of s. 239 enunciates a separate principle those principles are, so to speak, mutually’ exclusive and cannot be  cumulatively resorted to for trying several persons jointly in respect of several  offences  even  though they form part of  the  same transaction.   The   High  Court  has  propounded  that  the connection  described  in  each of the  various  clauses  is mutually  exclusive, that no two of them can exist  simulta- neously in any case and that one cannot, therefore, have  in any  case persons connected with one another in two or  more ways.   In other words, as the High Court puts  it,  persons included  in two or more of the groups cannot all  be  tried together  and  that  since there is  absolutely  nothing  to connect  one group with any other, the persons of one  group cannot be tried with those of any other.  No reason has been stated  in  support of this view.  Let us  consider  whether there  is anything intrinsically incompatible  in  combining two  clauses of s. 239.  Take cls. (a) and (b).  Clause  (a) says  that persons accused of the same offence committed  in

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the course of the same transaction may be charged and  tried together.   Clause  (b)  says that  persons  accused  of  an offence  and persons accused of abetment, or, of an  attempt to  commit  such  offence  may also  be  charged  and  tried together.   Now,  if  persons A, B and C are  tried  for  an offence  of murder what intrinsic difficulty would there  be in  trying X, Y and Z of abetment of the same offence?   The transaction  in which all of them have participated  is  the same and the abetment by X, Y and Z of the offence committed by A, B and C would itself establish the connection of their acts  with those of X, Y and Z. Next, let us take  cls.  (a) and  (c).  Clause (c) provides that persons accused of  more than  one offence of the same kind within the meaning of  s. 234  committed by them jointly within the period  of  twelve months  could  also be charged and tried together.   Let  us consider these clauses along with another illustration.  Two persons A and 326 B  enter  a  house at night and first  together  commit  the murder of a man sleeping there and then also his wife.  Each of  them  has  committed  two  offences  and  each  of  them participated in the same offence.  Why can they not be tried jointly for both murders and why should there be two  trials for the two murders ?  The offences are of the same kind and must  be deemed to have been committed in the course of  the same   transaction   because  of  association   and   mutual connection.   Now,  supposing in the  illustration  given  A killed  the man and B killed his wife.  Under cl.  (c)  they could be tried together because the offences are of the same kind.   It  would be ridiculous to say that they  cannot  be tried together for jointly committing the murder of the  man and  the  wife because cl. (a) and (c) cannot  be  combined. For,  without combining these two clauses their joint  trial for the two offences in each of which both have participated would  be impermissible.  Then take s. (a) and  (d).   Under cl.  (d) persons accused of different offences committed  in the  course of the same transaction can be  tried  together. Let us suppose that a group of persons are accused of having been  members of an unlawful assembly the common  object  of which was to overawe by sheer force another group of persons and  take forcible possession of a piece of land.   Some  of the members of the unlawful assembly carried axes with  them while  some  others carried lathis and  attacked  the  other group.  During the course of the attack one person from  the second  group  was killed, as a rest  of blows with  an  axe inflicted  by the aggressors A, B and C. Two persons of  the second  group sustained grievous hurt as a result  of  lathi blows and one person sustained simple hurt.  Let us say that the  grievous  hurt was caused as a result  of  lathi  blows given  by  X and Y, simple hurt was caused  by  lathi  blows given  by Z. Here, the offences committed were  those  under ss.  147,  302,  325  and 323,  I.P.C.  The  offences  being different  and  the  persons commiting  the  offences  being different, they could not  327 be  tried jointly only with the help of cl. (a) of  s.  239. Nor again, could they be tried jointly only with the help of cl.  (d).   Yet the transaction in which the  offences  were committed  is  the  same and there is  a  close  association amongst  the  persons  who  have  committed  the   different offences.  What intrinsic difficulty is there in trying them all together simultaneously availing of cls. (a) and (d)  of s.  239?  These are enabling provisions  which  circumstance implies  that the court may avail itself of one or  more  of these  provisions  unless  doing  so  would  amount  to   an

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infringement  of  any of the provisions of  the  Code.   All these persons can be jointly tried for offences under s. 147 by recourse to cl. (a).  So also A, B and C could be jointly tried together for an offences under s. 302.  X and Y can be charged  not  only with offences under ss. 147 and  325,  I. P.C.  but also under s. 302 read with s. 149.   Similarly  Z can  be  charged  with  offence’s under  ss.  147,  323  and offences under s. 302 read with s. 149 and s. 325 read  with s.  149.  The same offence committed by all of them is  that under s. 147 and all of them can be tried jointly in respect of  that offence under cl. (a).  Similarly, if we  take  cl. (d)  by  itself  all of them can be tried  jointly  for  the different  offences committed by each of them in the  course of  the same transaction and if cl. (a) is unavailable  they could not be tried for the offence under s. 147 at the  same trial.   This means that the trial for an offence  under  s. 147  will  have  to  be separated from  the  trial  for  the different  offences committed by them.  It is  difficult  to appreciate  what purpose would be served by  separating  the trial  for  the same offence from the  trial  for  different offences.   To  repeat,  the object of  the  legislature  in enacting s. 239, Cr.P.C. clearly was to prevent multiplicity of trials and not only would that object be defeated but  an extraordinary result will ensue if the various clauses of s. 239  are  read  disjunctively.  The  reasons  given  by  the Allahabad High Court, therefore, do not merit acceptance. 328 The  decision  in Singarachariar’s Case (1), has  really  no bearing  upon the point before us.  What was held there  was that ss. 235 (1) and s. 236 are mutually exclusive and if  a case  is covered by one of them it cannot be covered by  the other.   In that case the question was whether a person  who was  first  tried for an offence under s.  380,  I.P.C.  for stealing  a  blank  second class  railway  ticket  from  the booking  office, tried, for it and acquitted, could  not  be tried  subsequently  for the offence of  forgery  by  making entries  in that ticket and using it.  The acquittal in  the previous case was urged as a bar under s. 403(1) of the Code to  the  trial  for  an offence under  s.  467,  I.P.C.  The contention  apparently was that this was a case  which  fell under  s.  236,  Cr.  P.C. and that if  he  had  been  tried alternatively  for both the offences at the same  trial  the Court could have dealt with him under s. 237, Cr.  P.C.  The High  Court, however, held that to be a kind of  case  which fell under s. 235(1) of the Code and that since that was so, the provisions of s. 236 were excluded.  It is difficult  to appreciate  how this case assists the conclusion arrived  at by the High Court. In  D.K. Chandra’s Case (2) it was held that the  provisions of  ss. 234, 235 and 236 being exceptions to s. 233 must  be strictly  construed and that if joinder of charges  did  not fall  under any of them it would be illegal and contrary  to law.   The precise point which we have to consider here  did not  fall for consideration in that case i.e.,  whether  the provisions  of the various clauses of s. 239 could  be  used together  or  not.  This decision is, therefore,  of  little assistance.  On the other band there is the decision of this Court in The State of Andhra Pradesh v. Kandinmlla  Subbaiah (3),  which is to the effect that where several persons  had committed  offences in the course of the same  transactions, they could jointly be tried in respect of all those offences under s. 239 of the Code of Criminal (1) A.I.R. 1934 Mad 673. C. (2) A. I.R. 1952 Bom. 177, F. B. (3) [1962] 2 S. R. 194.  329

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Procedure  and the limitation placed by s. 234 of  the  Code could  not  come into operation.  There, nine  persons  were jointly tried for ’an offence under s. 5 (1) (c) and (d)  of the Prevention of Corruption Act, 1947, and s. 109, I. P. C. read with s’ 420, s. 466 and s. 467, I. P. C. and all except one for offences under ss. 420, 467/471, I.P.C. Some of them were also charged with separate offences under some of these provisions.  Two of the accused persons preferred a revision application before the High Court of Andhra Pradesh in which they  challenged the charges framed against them.  The  High Court  allowed the revision application.  But on  appeal  by the  State of Andhra Pradesh to this Court, this Court  held that   there  was  no  misjoinder  of  charges,   that   the introduction  of  a large number of charges, spread  over  a long  period was a question of propriety and that it  should be  left to the judge or the Magistrate trying the  case  to adopt  the course which he thought to be appropriate in  the facts  and circumstances of the case.  In so far as some  of the  charges were concerned this Court pointed out that  the Special  judge  who  was to try  the  case  should  consider splitting  them up so that the accused persons would not  be prejudiced   in   answering  the   charges   and   defending themselves.   It  is true that the question of  reading  the various clauses cumulatively did not specifically arise  for decision  in that case but the High Court had held that  the first charge was an omnibus charge containing as many as 203 offences and that it was in direct violation of ss. 234, 235 and  239  of the Code of Criminal Procedure.   Dealing  with this matter this Court held at p. 200 :               "No doubt, sub-s. (1) of s. 234 provides  that               not more than three offences of the same  kind               committed  by  an accused  person  within  the               space  of 12 months can be tried at  the  same               trial.   But then s. 235 (1) provides that  if               in  any  one  series  of  acts  so   connected               together               330               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.   Therefore,  where  the               alleged  offences have been committed  in  the               course of the same transaction the  limitation               placed  by  s.  234 (1)  cannot  operate.   No               doubt,  the offence mentioned in charge No.  I               is alleged to have been committed not by  just               one  person  but by all the  accused  and  the               question  is whether all these persons can  be               jointly   tried  in  respect  of   all   these               offences.  To this kind of charges. 239  would               apply.    This  section  provides   that   the               following  persons  may be charged  and  tried               together, namely :               (1)   persons  accused  of  the  same  offence               committed   in   the  course   of   the   same               transaction;               (2)   persons   accused  of  abetment  or   an               attempt to commit such an offence;               (3)   persons  accused of  different  offences               committed   in   the  course   of   the   same               transaction.               Clearly,  therefore, all the  accused  persons               could be tried together in respect of all  the               offences now comprised in charge No. 1. This  Court  has  thus clearly read the  provisions  of  the

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various  clauses cumulatively and we see no reason  to  read them differently. There  remains  the decision of this Court in  K.V.  Krishna Murthy  Iyer  v.  The  State of  Madras  (IN  on  which  Mr. Bhimasankaram  strongly  relied.  In that  case  this  Court upheld the order of the High Court of Madras in quashing the charges in the exercise (1)  A. I. R. 1954 s, a. 406.  331 of  its  inherent powers even before the conclusion  of  the trial.  It is true that there the charges were 67 in  number and  spread over a long period, of time.  That again  was  a matter  which came before the High Court  before  conviction and  not  after the trial was over.  When  an  objection  is taken at an early stage, there is time enough to rectify  an error.  But in the case before us no objection was taken  to multiplicity  or  misjoinder of charges before  the  learned Additional Sessions judge and it was only in the High  Court that  the point was raised, In such circumstances  what  the Court has to consider is whether prejudice has in fact  been caused  to  the  accused by reason of  the  multiplicity  of charges  or  misjoinder, if any, of the  charges.   This  is quite  clear  from the provisions of s. 537 of the  Code  as amended  by Act 26 of 1955.  In Willie (William)  Slaney  v. The State of Madhya Pradesh (1), all the learned judges were in agreement on the point that this section and s. 535 cover every  case in which there is departure from the  rules  set out   in  Ch.   XIX  ranging  from  error,   omissions   and irregularities  in charges that are framed, down to  charges that might have been framed and were not and include a total omission to frame a charge at all at any stage of the trial. The  whole  question has again been examined by  this  Court recently in Birichh Bhuian v. The State of Bihar (2).  Subba Rao  J., who delivered the judgment of the Court has  stated the position thus               "To summarise: a charge is a precise  formula-               tion  of a specific accusation made against  a               person of an offence alleged to have been com-               mitted by him.  Sections 234 to 239 permit the               joinder of such charges under specified condi-               tions for the purpose of a single trial.  Such               a  joinder  may be of charges  in  respect  of               different  offences  committed  by  a   single               person or several persons.  If the joinder  of               charges was contrary to the provisions of  the               Code it would               (1) [1955] 2 S. Co R. 1140,               (2) [1963] Supp. 2S.C.R. 328               332               be  a  misjoinder  of  charges.   Section  537               prohibits  the  revisional  or  the  appellate               court  from setting aside a finding,  sentence               or  order  passed  by  a  court  of  competent               jurisdiction   on   the  ground  of   such   a               misjoinder unless it has occasioned a  failure               of justice." Even  if we were to assume that there has been a  misjoinder of charges in violation of the provisions of ss. 233 to  239 of the Code, the High Court was incompetent to set aside the conviction of the respondents without coming to the definite conclusion   that  misjoinder  had  occasioned  failure   of justice.  This decision completely meets the argument  based upon Dawson’s Case (1).  Merely because the accused  persons are charged with a large number of offences and convicted at the  trial  the  conviction  cannot  be  set  aside  by  the

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appellate  court  unless it in fact came to  the  conclusion that  the accused persons were embarrassed in their  defence with the result that there was a failure of injustice.   For all  these reasons we cannot accept the argument of  learned counsel   on  the  ground  of  misjoinder  of  charges   and multiplicity of charges. Mr.  Bhimasankaram,  supporting the view taken by  the  High Court  then contends that it is not permissible to  frame  a charge  of conspiracy when the matter has  proceeded  beyond the stage of conspiracy and that in pursuance of it offences have actually been committed.  A similar view was  expressed by  the  same High Court in the case which was  reversed  by this  Court  in The State of Andhra  Pradesh  V.  Kandinalla Subbaiah  (2), and it was held that conspiracy to commit  an offence  being itself an offence a person can be  separately charged with respect to such a conspiracy.  Then this  Court has observed:               "  Where a number of offences are committed by               several  persons in pursuance of a  conspiracy               it is usual to charge them with those                (1)  (1960)1 All, E. R. 558    (2)  [1962]  2               S.C.R. 194,                333               offences    as    well    as with the  offence               of conspiracy to commit those offences.  As an               instance  of this we may refer to the case  in               S.  Swamirathnam  v.  State  of  Madras   (1).               Though  the point was not argued  before  this               Court  in  the  way it appears  to  have  been               argued.................. before the High Court               of Andhra Pradesh, this Court did not see any-               thing  wrong in the trial of  several  persons               accused of offences under s. 120-B and  s.420.               I.P.C.  We cannot, therefore, accept the  view               taken by the High Court of Andhra Pradesh that               the  charge  of conspiracy was  bad.   If  the               alleged offences are said to have flown out of               the conspiracy the appropriate form of  charge               would be a specific charge in respect of  each               of  those  offences along with the  charge  of               conspiracy." (pp. 201-202). This  decision is sufficient to dispose of the  point  under consideration. In  Swamirathnam’s  case (1), which is a  decision  of  this Court  certain  persons were tried for the  offence  of  the conspiracy  to  cheat  the members of  the  public  and  for specific   offences  of  cheating  in  pursuance   of   that conspiracy.   It was urged before this Court that there  was misjoinder of charges and persons Negativing the  contention this Court held that the charge as framed disclosed a single conspiracy  although spread over several years,  that  there was  one object of the conspiracy and that was to cheat  the members  of the public, that the fact that in the course  of years other joined the conspiracy or that several  incidents of  cheating took place in pursuance of the  conspiracy  did not have the effect of splitting the conspiracy into several conspiracies.  that the several instances of cheating  being alleged to be in pursuance of that conspiracy were parts  of the same transaction and, therefore, the joint trial of  the accused (1)  A. I. R. 1957 S. C. 340, 343, 344. 334 persons  for  the different offences was not  vitiated.   No doubt,  there  is  no discussion there as  to  the  question whether  the various clauses of s. 239 could be combined  or

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as to the impact of the provisions of S. 233 to 236 on those of  s.  239.  The actual decision of the case  is,  however, directly  opposed to the contention now put  forward  before us.  This decision has been followed in  Natwarlal  Sakarlal Mody v. The State of Bombay (1).  In that case the impact of s. 120-B, I.P.C. on ss. 233 and 239 of the Code of  Criminal Procedure  was  considered  by this  Court  and  this  Court observed:               "The  combined effect of the three  provisions               (ss.  235, 236 and 239) is that if there is  a               criminal   conspiracy  to   commit   different               offences, the persons who are members of  that               conspiracy  may be charged and tried  together               but  the necessary condition for invoking  the               provisions  of s. 239 (d) is that the  offence               should  have been committed in the  course  of               one transaction i.e., in the present case  one               and the same conspiracy." Here again, the question of clubbing together of the various provisions  of  cls.  (a) to (d) of s. 239  was  not  raised expressly  in  the  argument  before  the  Court.   But  the ultimate decision of the case would negative such argument. Mr.  Bhimasankaram then relying upon the decision in  R.  v. Dawson (2), contended that in any event it was not desirable to  try the respondents at the same trial for as many as  83 offences  and  pointed  out  that  these  observations   had received  the approval of this Court in The State of  Andhra Pradesh  v.  Kandimalla Subbaiah (3).  In  the  first  place there  the  trial had not actually begun.  Again,  what  was said by this Court was that it is undesirable to  complicate a trial by introducing a large number of charges (1)  Crl.  A. No. III of 1959 decided on January 19, 1961. (2) (1960) 1 All.  E.R. 568,  (3) [1962] 2 B.C.R. 194.  335 spread over a long period but even so this was a question of propriety  which  should be left to the  discretion  of  the judge or Magistrate trying the case. Objection  was taken very seriously by Mr. Bhimasankaram  to the  charge of conspiracy framed in this case.  That  charge reads thus :               "That both of you along with K.V. Ramana, Ex.-               Senior Accountant of the Vizagapatam  Electric               Supply    Corporation   Ltd.,    Visakhapatnam               (approver) and others, known or unknown, in or               about April 1, 1947, at Visakhapatnam,  agreed               to  do illegal acts, to wit,  commit  criminal               breach  of  trust  in  respect  of  the  funds               belonging  to the Vizagapatam Electric  Supply               Corporation Ltd., Vizagapatnam; and to  screen               yourselves  from  detection of  the  same,  to               wilfully, and with intent to defraud,  falsify               the accounts of the said Vizagapatam  Electric               Supply  Corporation  Ltd.,  Visakhapatnam  and               that  pursuant  to  the  said  agreement,  you               committed criminal breach of trust in  respect               of  funds  of the  said  Vizagapatam  Electric               Supply Corporation Ltd., Visakhapatnam to  the               extent  of over Rs 3,20,000 and falsified  the               said  accounts between April, 1947 and  March,               1952,  and  also  used  forged  documents   as               genuine],  offences punishable-under  Sections               409, Indian Penal Code and 477-A, Indian Penal               Code  and  471 read with section  467,  Indian               Penal Code ; and thereby committed an  offence               of   criminal  conspiracy   punishable   under

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             Section  120-B  of the Indian Penal  Code  and               within my cognizance." Adverting to the portion which we have bracketed, his  first objection was that the charge comprises within it not merely the conspiracy but also what 336 was  in fact done in pursuance of the conspiracy.  His  next objection  was  that it brought within its purview  all  the various  offences which were alleged to have been  committed by the respondents.  The third objection was that no  charge of  conspiracy could have been framed after  the  conspiracy had  borne  its  fruits.  The last objection  was  that  the charge  of  conspiracy was added to the  charge  sheet  very late. We  shall first deal with the third point.  The  offence  of conspiracy  is  an entirely independent offence  and  though other offences are committed in pursuance of the  conspiracy the liability of the conspirators for the conspiracy  itself cannot  disappear.  In the Indian Penal Code, as  originally enacted,  conspiracy  was not an offence.   Section  120  -B which makes criminal conspiracy punishable was added by  the Indian  Criminal Law Amendment Act, 1913 (8 of  1913)  along with s. 120-A.  Section 120-A defines conspiracy and s. 120- B provides for the punishment for the offence of conspiracy. Criminal  conspiracy as defined in s. 120-A and consists  of an  agreement to do an illegal act or an agreement to do  an act  which is not illegal by illegal means.  Section  120  B provides that whoever is a party to a criminal conspiracy to commit  an offence punishable with death,  imprisonment  for life  or  rigorous imprisonment for a term of two  years  or upwards shall be punishable in the same manner as if he  has abetted  such offence unless there was an express  provision in the Code for the punishment of such conspiracy.  Criminal conspiracy  was,  however, not an unknown thing  before  the amendment  of the Indian Penal Code in 1913.  But  what  the amendment did was to make that conspiracy itself punishable. The  idea was to prevent the commission of crimes by, so  to ,speak,  nipping  them in the bud.  But it does  not  follow that  where  crimes  have been committed  the  liability  to punishment already incurred  337 under s. 120-B by having entered into a criminal  conspiracy is  thereby wiped away.  No doubt, as already stated,  where offences for committing which a conspiracy was entered  into have  actually been committed it may not, in the  particular circumstances of a case, be desirable to charge the offender both  with  the  conspiracy and the  offences  committed  in pursuance  of that conspiracy.  But that would be  a  matter ultimately  within the discretion of the court before  which the  trial  takes place.  In so far as the fourth  point  is concerned, that would have a bearing not on the form of  the charge but on the credibility of the evidence bearing on the point of conspiracy.  As we are remanding the appeal to  the High Court for a fresh decision after full consideration  of the  evidence adduced in the case it would be open to it  to consider   this  matter  particularly  while   judging   the credibility of the-evidence of the approver. In  so  far  as  the portion  included  in  the  bracket  is concerned  we agree with the learned counsel that it  should not  have  found place there.  The ideas,  however,  of  the committing  magistrate  in stating all that  is  said  there appears  to have been merely to describe the conspiracy  and do  nothing more.  We do not think that either that  or  the other  objection raised, that is, that the  charge  embraces within  it all the offences said to have been  committed  by

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the respondents can properly. be said to vitiate the charge. The  object  in saying what has been set out  in  the  first charge was only to give notice to the respondents as to  the ambit  of the conspiracy to which they will have  to  answer and  nothing  more.  Even assuming for a  moment  that  this charge is cumbersome in the absence of any objection by  the respondents  at  the proper time and in the absence  of  any material  from  which  we could infer  prejudice,  they  are precluded by the provisions of s. 225 from complaining about it at any rate after their conviction by the trial court. 338 Coming to the next point of Mr.. Bhimsankaram regarding  the abuse  of powers under s. 342 his first contention was  that long  and  involved questions were put to  the  respondents. His  second  contention  was that reference was  made  to  a number  of  documents in some of these questions  and  those documents  were  not made available to the  respondents  for answering  those questions.  The third contention  was  that the  questions  were  involved, confusing  and  bordered  on cross-examination.   Finally he said that the court did  not perform its duty under s. 342 (4) of the Code as amended  as it  failed  to bring to the notice of the  respondents  that they may, if they chose, give evidence in their defence. In support of his first contention he referred to  questions Nos.  4,  8, 9, 10 and 20 put to the respondent  No.  I  and question  No.  12 put to the respondent No. 2 and  tried  to show  that  those  questions rolled up  a  large  number  of separate questions and that it could not have been  possible for  the respondents to give any rational answers  to  those questions.   We  have  read the questions and  so  also  the answers.   While  we  are disposed  to  agree  with  learned counsel  that the questions embrace a number of matters  and that  it  would have been better if those matters  had  been made  the subjects of separate questions, the answers  given by  the  respondents clearly show that they  understood  the questions  and  wherever possible they have  given  complete answers to those questions.  That is to say, they have given their  explantion regarding the circumstances  appearing  in the evidence set out in the questions and wherever that  was not  feasible they have said that they would do so in  their written  statements.  In fact written statements  have  been filed  by  each of them in which every point left  over  has been fully answered.  We are informed that the questions had been prepared before hand by the learned Additional Sessions judge, copies thereof were made available to  339 each  of the respondents and it was with reference to  those copies that they gave their answers in the court.  A pointed reference was made to question No. 20 put to respondent  No. I which contains as many as 22 sub-heads and it is said that it was an extremely unfair and embarrassing question.   What the learned Additional Sessions judge has done is to err  on the side of over-cautiousness by putting every  circumstance appearing  in the evidence to the respondents for  eliciting their   explanations.   His  object  was  to   obviate   the possibility  of a complaint before the appellate court  that they   were  denied  the  opportunity  of   explaining   the circumstances appearing in evidence against them because  of defective  questions.  Nor again, do we think that there  is any substance in the complaint made that the respondents had no  opportunity  of  referring to  the  documents  to  which reference has been made in certain questions.  No  objection was  taken  on their behalf before  the  learned  Additional Sessions  judge  and  from the manner  in  which  they  have answered the questions there is no doubt that they must have

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had opportunity to look at the relevant documents and answer the  questions.   We  are also satisfied that  there  is  no substance in the complaint that the questioning bordered  on cross-examination.    Undoubtedly  the  learned   Additional Sessions judge has questioned the respondents very fully and elaborately  but  to  say  that  this  bordered  on   cross- examination  is  wholly unjustifiable.  The  object  of  the learned  Additional  Sessions Judge quite  clearly  was,  as already  stated, to leave no loophole for a complaint to  be made   before   the  appellate  court   of   incomplete   or insufficient examination under s. 342. Finally  we are clear that it was not the duty of the  court to  draw  the pointed attention of the  respondents  to  the provisions  of sub-s. (4) of s. 342 and tell them that  they may, if they chose, enter the witness box.  It is true  that by introducing this provision 340 the  disability  placed on an accused person in  respect  of giving evidence on oath in his own defence has been  removed and  to  that extent such person is placed on  par  with  an accused  person under the English law.  The  new  provision, however, does no more than lift the ban and does not  impose a  duty  on the court to draw the attention  of  an  accused person  to its contents.  Apart from that,  the  respondents were represented by counsel at the trial who knew very  well what the law was.  No complaint was made by the  respondents even in appeal that they were ignorant of their right,  that had  they known about it they would have given  evidence  on oath  in  their defence and that because of this  they  have been prejudiced.  In the circumstances this point must  also be rejected as being without substance. The irrelevant evidence to which Mr. Bhimasankaram  referred was  certain  account books.  The entries  in  the.  account books of VESCO show that certain sums of money were paid  to various  parties, Crompton Engineering Co.,  Lumin  Electric Co., D. Brothers, Radio and Electrical, Madras,  Vizagapatam Municipality,  P.  V.  Ramanayya  Bros.,  and  Andhra  Power System.   They also show payment case was that the  payments which  were  entered in the account of VESCO do not  find  a place  in  the account books of the corresponding  firms  or authorities because they were never made by VESCO.  The High Court  has pointed out that the main evidence on  which  the prosecution  rests its case that the amount  represented  by the  entries  against  these various  firms  were  in.  fact misappropriated by the, respondents in the circumstance that there  are no corresponding entries in the account books  of those  firms.   The argument before the High Court  was  and before  us  is  that,  the absence of  an  entry  cannot  of electricity duty to Government.  The prosecution  341 be established by reference to s. 34 of the Indian  Evidence Act which reads thus:               "Entries  in books of account, regularly  kept               in  the  course  of  business,  are   relevant               whenever they refer to a matter into which the               Court has to    inquire,  but such  statements               shall  not  alone be  sufficient  evidence  to               charge any person with liability." This   section  appears  in  a  group  of  sections   headed "Statements made under special circumstances".  What it does is to make entries in books of account regularly kept in the course of business relevant in all proceedings in a court of law.    These  entries  are,  however,  not  by   themselves sufficient to charge any person with liability.   Therefore, when  A sues B for a sum of money it is open to him  to  put

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his  account books’ in evidence provided they are  regularly kept in the course of business and show by reference to them that  the  amount claimed by him is debited against  B.  The entry though made by A in his own account books, and  though it  is  in his own favour is a piece of evidence  which  the court  may  take  into  consideration  for  the  purpose  of determining  whether the amount referred to therein  was  in fact paid by A to B. The entry by itself is of no help to  A in his claim against B but it can be considered by the court along with the evidence of A for drawing the conclusion that the  amount  was  paid by A to B.  To  this  limited  extent entries  -in  the  account books are  relevant  and  can  be proved.   Section  34  does not go  beyond  that.   It  says nothing  about  non-existence of entries in  account  books. We,  therefore, agree with the High Court that  the  account books  of the various concerns to whom payments are said  to have  been  made by the respondents are  not  by  themselves evidence of the fact that no payments were received by them. The decision in Queen Empress v.   Grees  Chunder   Banerjee (1), upon which reliance (1) (1884) I. L. R. 10 Cal. 1024. 342 is  placed by the High Court in support of its view is  also to that effect.  Similarly in Ram prashad Singh v.  Lakhpati Koer  (1).  Lord Robertson during the course of the  hearing has observed that no inference can be drawn from the absence of  any  entry  relating  to  any  particular  matter  which observation  supports  the view taken in  Queen  Empress  v. Girish Chander Banerjee (2).  That, however, is not the only provision to be considered.  There is s. II of the  Evidence Act  which  provides that facts not otherwise  relevant  are relevant if they are inconsistent with any fact in issue  or relevant fact.  Some of the facts in issue in this case  are whether  payments  of  certain sums of money  were  made  to Crompton  Engineering Co., and other firms  or  authorities. These  are  relevant  facts.  Absence of  entries  in  their account books would be inconsistent with the receipt of  the accounts  and  would thus be a relevant fact  which  can  be proved under s. 11.  The fact that no payments were received by those firms has been deposed to by persons connected with those firms and whose duty it was to receive and acknowledge amounts  received by the firms or who were in charge of  the accounts of these firms.  For the purpose of showing that no amounts  were  received by the firms,  their  account  books would thus be as relevant as the VESCO account books for the purpose of showing the contrary.  Similarly there is s. 5 of the Evidence Act which reads thus:               "Evidence may be given in any suit or  procee-               ding  of  the existence  or  non-existence  of               every fact in issue and of such other facts as               are  hereinafter declared to be relevant,  and               of no others." It is the case of the prosecution that the alleged  payments were  never made by VESCO to the various firms.  It is  also their  case that these firms maintain their accounts in  the regular course of business and it is their practice to enter in  those accounts all payments received by them.  Both  the sets of facts are (1) (1902) I. L. R. 30 Cal. 231, 247. (2) (1884) I.L.R. 10 C.L 1024.  343 relevant,  that is, non-receipt of the amounts by the  firms and   non-existence  of  entries  in  their  account   books pertaining to those amounts.  It is permissible,  therefore, for  the prosecution to lead evidence to ,Drove  both  these

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facts.   The best evidence to prove the latter set of  facts consists  of the account books of the firms themselves.   It is  under  these provisions that the account  books  of  the firms must be held to be relevant.  What value to attach  to them is another matter and would be for the Court of fact to consider. It  may  further - be mentioned that the  account  books  of VESCO  show  certain payments made to Billimoria  &  Co.  of Kharagpur.   Papers  seized by the police  include  receipts purporting  to have been signed by one J. J.  Billimoria  on behalf  of  the firm.  The prosecution case  is  that  these receipts are forged documents and the entries in the account books  of VESCO are false.  One of the partners of the  firm was examined by the prosecution as a witness in the case and he  produced the account books of the firm.   Those  account books are in Gujrati and he stated in his evidence that  the accounts were regularly kept and that there were no  entries in them corresponding to the entries in the VESCO  accounts. The  High Court held that since the account books  were  not translated  they are not admissible in evidence.   The  High Court  was clearly wrong in so holding.  In coming  to  this conclusion it has relied upon the provisions of s. 356  (2A) of the Code of Criminal Procedure.  That section reads thus:               "When the evidence of such witness is given in               any  other language, not being  English,  than               the  language of the Court, the Magistrate  or               Sessions  judge  may  take  it  down  in  that               language with his own hand, or cause it to  be               taken  down in that language in  his  presence               and  hearing and under his personal  direction               and  superintendence,  and  an   authenticated               translation of               344               such evidence in the language of the Court  or               in English shall form part of the record." This provision relates only to the oral evidence adduced  in a case and not to documentary evidence.  Mr.  Bhimasankaram, therefore, very rightly did not support the view of the High Court.  In the circumstances we wish to say nothing  further on  the point.  We may, however, point out  that  Billimoria himself gave his evidence in English. Another point urged by Mr. Bhimasankaram was that as many as 2,000  documents  were "dumped" by the prosecution  in  this case  out  of  which 1600 documents were not  sought  to  be proved  by it.  Further, 64 documents were missing from  the records  when they came to the High Court and that this  has caused  serious prejudice to the respondent.  No  objection, however, was taken in the courts below on this score and  in the  absence of any prejudice to the respondents we  do  not think  that we should take notice of the complaint  made  by Mr. Bhimasankaram. The  third point stressed by him was that the  approver  was allowed  to refresh his memory, while deposing in the  case, by  referring extensively to the account books  and  various documents produced in the case.  This, according to him, was an  absue of the provisions of s. 159 of the  Evidence  Act. Now,  s.  159  expressly  enables  a  witness  while   under examination  to  refresh  his memory  by  referring  to  any writing  made  by  himself at the time  of  the  transaction concerning which he is being questioned or soon  afterwards, or  to a writing made -similarly by another person and  read by  the  witness immediately or soon after the  writing  was made.  Section 160 provides that a witness may also  testify to the facts mentioned in any such document as is  mentioned in  s. 159.  The complaint of Mr. Bhimasankaram is that  the

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approver should have been questioned  345 about the various facts which were sought to be  established through his evidence and it was only if and when he was in a difficulty that he should have been allowed to refer to  the account books.  Instead of doing that what he was  permitted to do was just to prove the various documents or read  those documents  and then depose with reference to them.   In  our opinion, where a witness has to depose to a large number  of transactions  ,  and those transactions referred to  are  or mentioned either in the account books or in other  documents there  is nothing wrong in allowing the witness to refer  to the  account  books and the documents  while  answering  the questions  put  to  him in his examination.   He  cannot  be expected  to remember every transaction in all  its  details and  s.  160 specifically permits a witness to  testify  the facts  mentioned  in  the documents referred to  in  s.  159 although  he has no recollection of the facts themselves  if he  is  sure that the facts were correctly recorded  in  the document.  That is precisely what happened in this case  and we do not think that the Additional Sessions judge adopted a procedure  which  was either a violation of law  or  was  an abuse of the power of the Court. The  next  point  is a formidable  one.   According  to  Mr. Bhimasankaram,  the  pardon  tendered to  the  approver  was illegal and if the pardon is illegal his evidence is  wholly inadmissible.   Further, according to him, the  evidence  of the  approver was found by the Additional Sessions judge  to be unreliable and therefore, the first condition referred to in  Sarwan  Singh  v.  The State  of  Punjab  (1),  was  not satisfied.   For  all  these reasons  the  evidence  of  the approver must be left out of account.  If it is left out  of account,  he contends, there is nothing left in  the  prose- cution  case,  because,  as pointed out  by  the  Additional Sessions  judge himself the evidence of the approver is  the pivot of the prosecution case. (1)  [1957] S.C. R. 953. 346 The  pardon  is stated to be illegal for two  reasons.   The first  reason is that none of the offences alleged  to  have been  committed falls within s. 337 of the Code of  Criminal Procedure  and  the  second reason is that  the  pardon  was granted by an authority not empowered to grant it.   Section 337  (1) as it stood before its amendment by Act 26 of  1955 read thus               "In   the   case  of   any   offence   triable               exclusively  by  the High Court  or  Court  of               Session,   or  any  offence  punishable   with               imprisonment which may extend to ten years, or               any  offence punishable under section  211  of               the Indian Penal Code with imprisonment  which               may  extend  to seven years,  or  any  offence               under  any  of the following sections  of  the               -Indian Penal Code namely, sections 161,  165,               165A, 216A, 369, 401, 431, 435 and 477-A,  the               District Magistrate, a Presidency  Magistrate,               a sub-divisional Magistrate or any  Magistrate               of  the first class may, at any stage  of  the               investigation or inquiry into, or the trial of               the  offence,  with a view  to  obtaining  the               evidence  of any person supposed to have  been               directly  or indirectly concerned in or  privy               to the offence, tender a pardon to such person               on  condition  of his making a full  and  true               disclosure  of the whole of the  circumstances

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             within  his knowlege relative to  the  offence               and  to every other person concerned,  whether               as  principal  or abettor, in  the  commission               thereof :               Provided  that,  where the  offence  is  under               inquiry  or trial, no Magistrate of the  first               class other than the District Magistrate shall               exercise the power hereby conferred unless  he               is  the  Magistrate  making  the  inquiry   or               holding  the trial, and, where the offence  is               under investigation, no such Magistrate shall                347               exercise  the  said  power  unless  he  is   a               Magistrate  having  jurisdiction  in  a  place               where  the offence might be inquired  into  or               tried   and  the  sanction  of  the   District               Magistrate  has been obtained to the  exercise               thereof." His  contention  is  that  where none  of  the  offences  is exclusively  triable  by  the High Court  or  the  Court  of Sessions  pardon could be granted only if the  offences  are punishable with imprisonment which could extend to ten years but  not  if  a higher punishment were  provided  for  them. Here, one of the offences alleged against the respondents is criminal breach of trust punishable under s. 409, I.P.C.  It is  not exclusively triable by a Court of Sessions  and  the punishment as set out in the 7th column of Schedule II,  Cr. P. C. was transportation for life or imprisonment of  either description for ten years and fine.  He contends that  since the  offence is punishable with transportation for life,  s. 337  (1) could not be availed of for granting pardon to  the approver.   It seems to us that it would not be  correct  to read  s. 337 (1) in the way sought by learned counsel.   The very  object  of  this provision is to allow  pardon  to  be tendered  in cases where a grave offence is alleged to  have been  committed by several persons so that with the  aid  of the  evidence  of the person pardoned the offence  could  be brought  home to the rest.  The gravity is of course  to  be determined  with  reference to the sentence  awardable  with respect   to  that  offence.   On  the  strength  of   these considerations Mr. Chari for the State contends that if  the words  "any offence punishable with imprisonment  which  may extend to 10 years" were interpreted to mean offences  which were  punishable  with imprinsonment of less than  10  years grave offences which are not exclusively triable by a  court of  Sessions  will  be completely out of  s.  337  (1).   He suggests that this provision can also be reasonably 348 interpreted  to mean that where the offences are  punishable with  imprisonment exceeding 10 years pardon may be  granted to  the  approver.   No doubt,  if  this  interpretation  is accepted  the  object of the section, that  is,  to  embrace within  it the graver offences, would be fulfilled,  but  we wish  to express no opinion on it.  For, the pardon  granted in  -this case can be regarded as being within the ambit  of s.  337  (1) for another reason.  It will  be  noticed  that transportation for life was not the only punishment provided for  an offence under s. 409 of the Indian Penal  Code  even before the amendment made to the Indian Penal Code by s. 117 of  the  Act  26  of  1955,  the  other  alternative   being imprisonment  up to 10 years.  Therefore, since the  offence under  s. 409 was not merely punishable with  transportation for  life but alternately also punishable with  imprisonment which  could  extend to 10 years, s. 337  (1)  would  apply. This section does not expressly say that the only punishment

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provided   for  the  offence  should  be  imprisonment   not exceeding 10 years.  The reason why two alternative  maximum sentences  are given in col. 7, that is, transportation  for life  (now  imprisonment  for  life)  and  imprisonment  not exceeding  10  years appears to be that the offence  is  not exclusively triable by a court of session and could also  be tried  by a Magistrate, who, except when empowered under  s. 30  would  be incompetent to try  offences  punishable  with transportation for life (now imprisonment for life) and  the further  reason  that  it should be open  to  the  court  of Session, instead of awarding the sentence of  transportation for life to a convicted person to award him imprisonment  in a jail in India itself for a period not execeeding 10 years. Now, of course, by the amendment made by s. 117 of Act 26 of 1955  for  the  words "transportation for  life"  the  words "imprisonment  for  life"  have been  substituted,  but  the original   structure  of  all  the  sections   now   amended continues.   That is why they read rather queer but even  so they serve the purpose  349 of allowing certain offences triable by a court of  Session, to  be triable also by Magistrates of the First  Class.   Be that as it may, there is no substance in the first ground. What  we  have said about pardon in respect  of  an  offence under  s. 409 would apply equally to that for one  under  s. 120-B because the punishment for it is the same as that  for the offence under s. 409. The offence under s. 467 read with s. 471 is punishable with imprisonment for life or imprisonment of either  description for a period of 10 years but it is exclusively triable by  a court  of Session and, therefore, in so far as such  offence is  concerned  the argument of Mr. Bhimasankaram  would  not even  have been available.  As regards the offence under  s. 477-A,  it is one of those sections which  are  specifically enumerated  in s. 337 (1) and the argument  advanced  before us-and  which we have rejected would not even  be  available with regard to the pardon in respect of that offence.  It is true  that the respondent No. I alone was convicted  by  the Additional  Sessions judge of this offence and  the  offence under  s. 467 read with s. 471 but the validity of a  pardon is  to be determined with reference to the  offence  alleged against  the  approver alone and not with reference  to  the offence or offences for which his associates were ultimately convicted. Coming  to  the  next ground of attack on  the  validity  of pardon, the argument of Mr. Bhimasankaram is that whereas s. 337  (1)  speaks  of  pardon being  granted  by  a  District Magistrate,  or  Presidency  Magistrate,  a   Sub-Divisional Magistrate or any Magistrate of First Class, except in cases where an enquiry or trial was pending before another  Magis- tratc,  the  pardon  here  was  granted  by  the  Additional District  Magistrate in a case where an enquiry was  pending before  the District Magistrate and is,  therefore,  illegal and of no avail.  He contends that 350 s.   337  (1)  speaks  of  the  District  Magistrate   which expression   does   not  include  an   Additional   District Magistrate.   Mr. Bhimasankaram’s argument on the point  may be  summarised thus : Such a power cannot be conferred  upon an  Additional District Magistrate because s. 337  (1)  does not  contemplate grant of pardon by an  Additional  District Magistrate and that the Additional District Magistrate would have no   status  other  than that of  a  Magistrate,  First Class.  No doubt, under entry (9-a) in Part III of Sch.  III to  the  Code a Magistrate, First Class, has  the  power  to

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grant  pardon under s. 337 but it is limited by the  proviso thereto to certain classes of cases. A case under enquiry or trial before another     magistrate does not fall in any  of these classes.      Therefore,  a pardon granted by  him  in such a case    would be illegal.  The Magistrate before whom the   enquiry  or  trial  is  proceeding  or  the   District Magistrate would be the only authorities competent to  grant a   pardon  in  such  a  case.   Alternatively,  the   State Government  has not made any directions under sub-s. (2)  of s. 10 specifying the powers of the District Magistrate which would lie exercisable by the Additional District  Magistrate concerned. In  order  to  appreciate and consider the  argument  it  is desirable to bear in mind the changes in the magisterial set up  in the former province of Madras which comprised  within it  the district of Visakhapatnam.  By Government Order  No. 3106 dated September 9, 1949 the Government of the  Province of Madras issued certain instructions to the Magistrates  in pursuance  of  the  separation of  the  judiciary  from  the executive.   It  divided the magistrates  into  two  groups, Judicial magistrates and executive magistrates.  The  latter category comprises of the executive officers of the  Revenue Department,  on whom the responsibility for the  maintenance of  law  and order was to continue to rest., Para 4  of  the instructions provides  351 ".................. To enable them to discharge this respon- sibility,  these officers will continue to  be  magistrates. The Collector, by virtue of office, will retain some of  the powers  of  a  District Magistrate and will  be  called  the ’Additional  District Magistrate.  To distinguish  him  from his  Personal  Assistant,  he  may  be  called   ’Additional District Magistrate (Independent)’.  He will continue to  be the  Head of the Police.  Similarly, the Revenue  Divisional Officers will be exofficio First Class Magistrates, and  the Tahsildars  and  the Deputy Tahsildars  will  be  ex-officio Second  Class Magistrates.  The extent of their  magisterial powers will be as indicated in the Schedule of allocation of powers.   They  will  exercise  these  powers  within  their respective  revenue jurisdictions." Para 5 provides that  as officers of the Revenue Department, those magistrates  would be under the control of the Government through the Board  of Revenue.  The Additional District Magistrates  (Independent) would  also be under the control of the  Government  through the Board of Revenue.  The category of judicial  Magistrates was  constituted of the following: (1) District  Magistrate; (2)  Sub-divisional Magistrates; (3) Additional First  Class Magistrates   and   (4)  Second  Class   Magistrates   (Sub- magistrates).   The District Magistrate was  constituted  as the  principal  magistrate of the District and as  such  was entrusted  with  the  duty  of  general  administration  and superintendence  and control over the other judicial  magis- trates  in  the  district.   In  addition  to  his   general supervisory functions and the special powers under the  Code of  hearing revision petitions, transfer petitions,  appeals from  Second  Class Magistrates and the like,  the  District Magistrate  was  also to be assigned a  specific  area,  the cases  arising from which would be disposed of  normally  by himself.   This body of magistrates was made subordinate  to the  High Court.  Till the separation between the  judiciary and the executive was effected the Collector as the head  of the Revenue Department was also the 352 District Magistrate.  Consequent on the separation he became only  an  Additional District Magistrate.  Part  IV  of  the

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Government order deals with the allocation of powers between the   judicial  and  executive  magistrates.    Para   19(3) occurring in this part deals with allocation of powers under the provisions of the Code otherwise than these referred  to in  the earlier paragraphs.  It specifically  provides  that the  power to tender pardon udder s. 337 shall be  exercised by executive magistrates except in cases referred to in  the proviso  to  sub-s.  (1) of that section, in  which  case  a judicial magistrate may exercise that power. In  spite of the Government order all Magistrates who  have, under Sch.  III to the Code of Criminal procedure the  power to  grant  pardon  will continue to  have  that  power  and, therefore,  a  pardon granted by a  judicial  Magistrate  in contravention  of the Government order will not be  rendered invalid.   However, that is not the point which is  relevant while  considering the argument of Mr.  Bhimasankaram.   His point is that the proviso to s. 337(1) confers the power  on "the District Magistrate" to grant pardon in a case  pending before another Magistrate and not on "a District Magistrate" and,  therefore,  his power to grant pardon  in  such  cases cannot  be  conferred  under  sub-s.(2)  of  s.  10  on   an Additional  District  Magistrate.  According to  him,  under that  section  only the powers of  "a  District  Magistrate" meaning thereby only the powers under Entry 7 (a) in Part  V of  Sch.   III  as distinguished from the  power  under  the proviso  to s. 337 (1) can be conferred upon  an  Additional District   Magistrate.   Secondly,  according  to  him,   no direction  has in fact been shown to have been made  by  the State  Government  conferring upon  an  Additional  District Magistrate  the  power of the District Magistrate  to  grant pardon.   In  our  opinion,  there is  no  subtance  in  the contention.  The power conferred by sub-s. (1) of s. 337  on the  different  clauses  of  Magistrates  is  of  the   same character. 353 The  power to grant pardon in a case pending before  another Magistrate is no doubt conferred by the proviso only on  the District Magistrate.  But Entry 7 (a) in Part V of Sch.  III when  it refers to the power of a District Magistrate  under s.  337  (1) does not exclude the power under  the  proviso. There  is, therefore, no warrant for drawing  a  distinction between  the  powers of "the District  Magistrate"  and  the powers of "’a District Magistrate." The power of a  District Magistrate  to grant Pardon has been specifically  conferred on  Additional District Magistrates as would appear from  s. no.  37  of Sch.  III of the Government Order,  which  reads thus : "SI.  Judl.  Exec.  Concurrent no. magis- magis- jurisdic- trate trate    tion 37  337(1) 2nd paragraph (proviso)               Remarks               Reference  to the District Magistrate  in  the               proviso  should be construed as  reference  to               the  Executive District Magistrate.  Reference               to  the  Magistrate  making  the  enquiry   or               holding the trial etc., should be construed as               a reference to the judicial Magistrate." No  doubt, here the reference is to the  Executive  District Magistrate.   But  it is clear from the other  part  of  the Government  Order  that  what  is  meant  by  that  is   the Additional  District Magistrate (Independent).   This  was., and,  we are told, is being regarded as a direction  of  the Government  falling  under subs. (2) of s. 10 of  the  Code. Whether the interpretation is correct or not, we feel little

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doubt that the 354 action  of the Additional District Magistrate  (Independent) Visakhapatnam  in granting a pardon to the approver in  this case  though  it  was pending enquiry  before  the  District Magistrate (judicial), was bona fide.  A pardon granted bona fide is fully protected by the provisions of s. 529, Cr.  P. C. The  High Court has not considered any of the provisions  to which  we  have referred but held that as  the  offence  was being equired into by the District Magistrate,the Additional District Magistrate could not usurp  the  functions  of  the former and grant    a pardon.  Had it done so, it would  not have come to this conclusion.  We are, therefore, unable  to accept it. Mr.  Chari for the State advanced a further argument  before us  in  case  his main argument that the  pardon  was  valid failed  and  said that the approver, even if we  ignore  the pardon,  was  a  competent  witness.   In  support  of   his contention   he  strongly  relied  upon  the   decision   in Kandaswamy Gounder In re : the appellant (1), and the  cases referred to therein, in particular the decision in Winson v. Queen  (2).  What has been held in all these cases  is  that where  the  trial of a person who was  charged  with  having committed  an  offence  or  offences  jointly  with  several persons  is  separated from the trial of those  persons,  he would  be a competent witness against them though of  course there  will always be the question as to what weight  should be attached to his evidence.  Mr. Chari then referred to  s. 133  of the Evidence Act and pointed out that  this  section clearly  makes an accomplice evidence admissible in  a  case and  that  an approver whose pardon is found to  be  invalid does not cease to be an accomplice and contends that he  is, therefore,  as competent a witness as he would have been  if he  had not been granted pardon at all and not been  put  on trial.   Learned  counsel  further  pointed  out  that   the decisions show (1) I.L.R. 1957 Mad 715, (2) (1866) L.R. I Q.B.  355 that however undesirable it may be to adduce the evidence of a  person  jointly accused of having  committed  an  offence along with others, his evidence is competent and  admissible except  when  it  is given in a case in which  he  is  being actually tried.  This legal position does not, according  to him, offend the guarantee against testimonial compulsion and he points out that that is the reason why an accused  person is  not to be administered an oath when the  court  examines him  under  s.  342  (1) for enabling  him  to  explain  the circumstances appearing in evidence against him.  If  pardon is tendered to an accused person and eventually it is  found that  the pardon is illegal such person is pushed back  into the  rank  of an accused person and being no  more  than  an accomplice  would  be  a competent  witness.   The  question raised   is  an  important  one  and  requires   a   serious consideration.   Mr. Chari in support of his contention  has cited  a large number of cases, Indian as well  as  English, and  certain passages from Halsbury’s Laws of England.   But in  the view we take about the legal validity of the  pardon tendered,  we do not wish to pronounce one way or the  other on this very interesting question. Now,  as regards the reliability of the approver.  It is  no doubt  true that an approver has always been regarded as  an infamous  witness, who, on his own showing has  participated in a crime or crimes and later to save his own skin,  turned

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against  his former associates and agreed to  give  evidence against  them in the hope that he will be pardoned  for  the offence  committed  by him.  The High Court seems  to  think that  before reliance could be placed upon the  evidence  of the  approver it must appear that he is a penitent  witness. That,  in  our opinion, is not the correct  legal  position. The  section itself shows that the motivating factor for  an approver  to  turn,  what  in  England  is  called   "King’s evidence" is the hope of pardon and not any noble  sentiment like contrition 356 at  the  evil  in which he has  participated.   Whether  the evidence  of  the  approver  should in  any  given  case  be accepted  or not will have to be determined by applying  the usual tests such as the probability of the truth of what  he has  deposed  to the circumstances in which he has  come  to give  evidence  whether  he has made  a  full  and  complete disclosure, whether his evidence is merely  self-exculpatory and  so  on and so forth.  The court has,  in  addition,  to ascertain   whether  his  evidence  has  been   corroborated sufficiently in material particulars.  What is necessary  to consider  is whether applying all these tests we should  act upon the evidence of the approver should be acted upon. We however, find that certain documents upon which Mr. Chari wants to rely are not included in the paper book.  It  would take considerable time if we were to adjourn this matter now and  give  an opportunity to the parties  to  include  those documents  on record.  The better course would be for us  to set aside the acquittal of the respondents and send back the appeal  to the High Court ?or being decided on merits.   The High  Court will of course be bound by the finding which  we have given on the questions of law agitated before us.  What it must now do is to consider the entire evidence and decide for itself whether it is sufficient to bring home all or any of the offences to the respondents.  We may mention that the High  Court’s observation that the approver’s  evidence  was treated  as  unreliable by the learned  Additional  Sessions judge  is  not correct.  Of course, the view  taken  by  the Additional Sessions judge is not binding on the High  Court. But  it should remove from its mind the  misconception  that the  Additional Sessions judge has not believed him.   There is  another  thing which we would like to make  clear.   The decision  in  Sarwan Singh v. The State of  Punjab  (1),  on which  reliance has been placed by the High Court  has  been explained by this Court in the case of (1)  [1957] B. C. R. 953.  357 Maj.   E. G. Barsay v. The State of Bombay (1).  This  Court has pointed out in the latter decision that while it must be shown that the approver is a witness of truth, the  evidence adduced  in a case cannot be considered in compartments  and that  even for judging the credibility of, the approver  the evidence  led  to corroborate him  in  material  particulars would be relevant for consideration.  The High Court  should bear  this in mind for deciding whether the evidence of  the approver  should be acted upon or not.  Then again it  would not  be  sufficient  for the High Court  to  deal  with  the evidence in a general way.  It would be necessary for it  to consider for itself the evidence adduced by the  prosecution on  the specific charges and then to conclude whether  those charges have been established or not.  The prosecution would be well, advised if, instead of placing the evidence on each and  every one of those large number of charges against  the respondents,  it chooses to select a few charges under  each head  other than the head of conspiracy and concentrates  on

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establishing those charges, this would save public time  and also  serve  the  purpose of the  prosecution.   With  these observations  we set aside the acquittal of the  respondents and  remit  the  appeal to the High Court  for  decision  on merits in the light of our observations.                                     Appeal allowed.                                     Case remanded. (1) [1962] 2 S.C. R. 195. 358