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PETITIONER: STATE OF BOMBAY

       Vs.

RESPONDENT: UMARSAHEB BURANSAHEB INAMDA

DATE OF JUDGMENT: 23/01/1962

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR DAS, S.K. SUBBARAO, K.

CITATION:  1962 AIR 1153            1962 SCR  Supl. (2) 711  CITATOR INFO :  RF         1982 SC  20  (7)

ACT:      Criminal Procedure Code-Offences committed in pursuance of  Criminial conspiracy-One  trial,  if permissible-Defect  in   framing  the  charge,  if curable-Code of  Criminal Procedure 1898 (Act V of 1898), ss.222 (2), 235, 537.

HEADNOTE:      The respondents were charged and tried at the same  trial   with  the   offences    of  Criminal conspiracy  and   breach  of  trust  committed  in pursuance thereof during a period of more than one year.  The   question  arising  for  decision  was whether,   in   the   framing   of   the   charge, contravention of  the provisions  of sub-s.(2)  of s.222 which allowed a combined charge with respect to the  amount embezzled  within a  period of  one year, vitiated the trial. ^      Held, that  the defect  in the charge did not lead to any prejudice to the accused and therefore did not vitiate the trial in view of the provision of s. 537 of the Code of Criminal Procedure.      When all  the offences committed in pursuance of a  conspiracy are  committed in  course of  the same transaction this can be tried together at one trial in view of s. 235(1) of the Code of Criminal Procedure which provides that if in one 712 series of  acts so  connected together  as to form the same  transaction, more  offences than one are committed by  the same  person, he  may be charged with  and  tried  at  one  trial  for  every  such offence.      Kadiri Kanhahammad  v. The  State  of  Madrs, A.I. R. 1960 S. C. 661, followed.

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JUDGMENT:      CRIMINAL  APPELLATE   JURISDICTION:  Criminal Appeal No. 237 of 1959.      Appeal from  the  judgment  and  order  dated February 10  and 11  of 1959,  of the  Bombay High Court in  Criminal Appeal  No. 1023/59 with Crinal Appeals Nos. 1048 and 1048 of 1958.      H.  R.  Khanna  and  P.  D.  Menon,  for  the appellant.      S. G. Patwardhan. J.B. Dadachanji O.C. Mathur and Ravinder Narain, for the respondent No. 1.      1962. January  23. The  Judgment of the Court was delivered by      RAGHUAR   DAYAL,   J.-This   appeal,   on   a certificate granted  by the  High Court of Bombay, raises the  question whether  the contravention of the provisions of sub-s. (2) of s. 222 of the Code of  Criminal  Procedure,  hereinafter  called  the Code, in  the framing  of the  charge  against  an accused, vitiates the trial.      The facts  leading to  the appeal,  in brief, are as  follows. The  respondents were charged and tried at  the same  trial of the offences under s. 120B read  with s.  406, I.P.C., and of an offence under s. 406, I.P.C. and committed in pursuance of the criminal  conspiracy they  had  entered  into. They were  also  tried,  but  acquitted  of  other offences charged with. They appealed against their conviction of the offence under s. 120-B read with s. 406,  I.P.C., and  of the offence under s. 406, I.P.C. The  charge under  s. 406,  I.P.C, was with respect to  the commission  of trust of trust of a sum of  Rs. 2,18,369/- between the period March 6. 1949, and  June 30,  1950. It was contended before the High  Court that the charge framed contravened the provisions of sub 713 s. (2)  of s.  222 of  the Code  which  allowed  a combined  charge   with  respect   to  the  amount embezzled within  a period  of a  year.  The  High Court agreed with this contention and, holding the trial  void,  set  aside  the  conviction  of  the respondents and  acquitted them  of the  offences. The High  Court, however,  maintained the order of acquittal is  respect of  the other  offences. The State of  Bombay (now  Maharashtra) has filed this appeal  against   the  order   setting  aside  the conviction of the respondents.      It is  not necessary  for us  to determine in this  appeal  the  general  question  whether  the contravention of  the provisions  of sub-R. (2) of s. 222  of the Code, in the framing of the charge, will always  make the  trial  void,  as,  in  this particular case, the offence under s. 406, I.P.C., charged against  the respondents  was said to have been  committed   in  pursuance   of  a   criminal conspiracy entered into by them. It will therefore suffice, for the purpose of this case, to consider whether such  a defect  in the charge vitiates the present trial.      Section  222  of  the  Code  is  one  of  the sections in  Chapter XIX, which deals with Form of Charges. Sections  221, 222 and 223 deal with what should be  mentioned  in  the  charge.  The  whole object  of   the  charge   is  inform   both   the

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prosecution, and  the accused particularly, of the accusation the  prosecution has  to establish  and the accused  has to  meet. So  long as the accused knows fully  what accusation  he has  to meet  any error in  the narrative  of the charge need not be fatal to the trial. Sections 225, 232, 535 and 537 save the  trial  from  being  vitiated  unless  of course the accused has been prejudiced and failure of justice has taken place.      Sections 233  to 239 deal with the joinder of charger, and  they speak  not only  of an  accused being charged with offences, but of such charges 714 being tried  separately or  jointly.  Section  233 states that  for every  distinct offence  of which any person  is accused,  there shall be a separate charge  and  every  such  charge  shall  be  tried separately, except  in the  cases mentioned in ss. 234, 235,  236 and  239.  It  is  clear  that  the general rule  is theat  there should be a separate trial for  each distinct offence of which a person is accused.  It follows that each item of property of which  an accused  is alleged to have committed breach of  trust, constitutes one distance offence and that,  in general,  it would  be necessary  to have as  many trials as there be distinct offences of criminal  breach  of  trust  committed  by  the accused. But  s. 222(2)  provides  that  when  the accused is  charged with criminal breach of trust, the charge  may be  with respect  to the gross sum embezzled within a period of one year and that the charged so  framed shall  be deemed to be a charge of one  offence within  the meaning of s. 234. The charge framed in the present case was with respect to the gross sum embezzled within a period of more than twelve months, the period being between March 6, 1949  and June  30, 1950.  The charge therefore was in  contravention  of  the  provisions  of  s. 222(2). This  defect in  the charge,  however, did not lead  to any  prejudice to  the accused in the trial and  therefore did not vitiate the trial, in view of the provisions of s. 537 of the Code.      The charge  could have been split up into two charges,  one  with  respect  to  the  offence  of criminal breach of trust committed with respect to the amount  embezzled between  March 6,  1949  and March 5,  1950 and  the other  with respect to the amount embezzled  between March  6, 1950  and June 30, 1950.  The two  offences of criminal breach of trust  could  have  been  tried  together  in  the present case,  as the  offences were  said to have been  committed   in  pursuance  of  the  criminal conspiracy entered  into by  the accused,  All the offences 715 committed  in  pursuance  of  the  conspiracy  are committed in  the course  of the  same transaction and therefore  can be tried together at one trial, in view  of sub s. (1) of s. 235 of the Code which provides  that   if  in  one  series  of  acts  so connected   together   as   to   form   the   same transaction, more  offences than one are committed by the  same person,  he may  be charged  with and tried at  one trial  for every such offence. It is therefore clear  that no  prejudice was  caused to

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the accused by the defect in the charge.      A similar  view has  been taken by this Court in Kadiri Kundahammad v. The State of Madras (1).      We may  further point out that the High Court should not  have expressed  its opinion  or passed any order  with respect  to the  acquittal of  the respondents for  the other offences when the order of acquittal  was not  before it for consideration and when  it had held the entire trial to be void, on account  of the contravention of the provisions of sub-s. (2) of s. 222.      We therefore  hold  that  the  trial  of  the respondents was  legal  and  therefore  allow  the appeal and  set aside the order of the High Court. Their appeal against their conviction has not been heard on  merits and  therefore we remand the case to the High Court for further hearing according to law. 716