Chandra Mohan Chaudhari v. State — 1957 DIGILAW 306 (ALL)

JUDGMENT J.K. Tandon, J. - This is an application in revision on behalf of Chandra Mohan, who is being prosecuted in special trial No. 4 of 1955 in the court of the Special Judge at Kanpur on charges u/s 5(2) of the Prevention of Corruption Act and Ss. 409, 465, 468, 420 and 120B of the IPC. 2. The applicant was an ahalmad in the court of City Magistrate at Kanpur. Prior to his prosecution in special trial No. 4 of 1955 he was prosecuted in special trial No. 6 of 1953 u/s 5(2) of the Prevention of Corruption Act and Sections 465 and 471, IPC read with S. 120B, IPC, for the misappropriation of a sum of Rs. 22,558 which it was alleged had been collected by him in his official capacity jointly with the co-accused in that case. This trial commenced on the basis of a charge-sheet which was presented on 10-10-1953. Permission of the District Magistrate in respect of the charge-sheet then submitted was obtained on the same date. A sum of Rs. 22,558 said to have been misappropriated in that case covered the period commencing from 5-11-1951 to 5-11-1952. Iunderstand that the applicant was convicted in that case for offences u/s s. 4b5 and 471, IPC, and S. 5(2) of the Prevention of Corruption Act but was acquitted of other charges. 3. So far as the present special trial No. 4 of 1955 is concerned the amount said to have been misappropriated by the applicant was a sum of Rs. 7,147 during the period 1949 to 1950. The charges against him under the several sections of the IPC and S. 5(2) of the Prevention of Corruption Act related to the items between the period 1949 to ly50. These items were not the subject matter of the charge in special trial No, 6 of 1953. Here it may further be mentioned that so far as trial No. 4 of 1955 is concerned the sanction of the District Magistrate for the prosecution was obtained on 14-12-1953 more than four months after the sanction had been granted in connection with special trial No. 6 of 1955. 4. Here it may further be mentioned that so far as trial No. 4 of 1955 is concerned the sanction of the District Magistrate for the prosecution was obtained on 14-12-1953 more than four months after the sanction had been granted in connection with special trial No. 6 of 1955. 4. The applicant's grievance is that he having already been prosecuted and convicted in special trial No. 6 of 1953 his trial over again in respect of the sums said to have been misappropriated during the period 1949 to 1950, which was a prior period, is contrary to the principle embodied in Cl (2) of Article 20 of the Constitution and also S. 403 of the CrPC. He has also urged that the trial is bad on the principle of autrefois convict and that in any case it is an abuse of the process of law and is liable to be quashed u/s 561 A, CrPC. In support his Learned Counsel has relied on a decision of Andhra High Court in G. Ramchandra Chetty Vs. State of Andhra Pradesh, AIR 1956 AP 102 . Prior to coming up in revision before this Court the applicant had applied to the trial court which nevertheless rejected his application hence this revision. 5. The material facts have already been stated above. What is very clear from them is that the earlier prosecution was in respect of an entirely different sum which covered the period between 5-11-1951 to 5-11-1952. The charges on which that prosecution was commenced were different and not altogether under the same sections of the IPC. There were no charges then u/s s. 409, 468 and 420, IPC. Then again, when the charge-sheet in that case was presented the sanction of the District Magistrate had not been granted in respect of the items, the subject matter of charge in the present case. Besides, the accused in the former trial included one Kailash Nath who is not in the list of accused persons in special trial No. 4 of 1955. It has been contended on behalf of the applicant that the evidence in the former case and the evidence in the present case will be the same. Besides, the accused in the former trial included one Kailash Nath who is not in the list of accused persons in special trial No. 4 of 1955. It has been contended on behalf of the applicant that the evidence in the former case and the evidence in the present case will be the same. On behalf of the State it is said that while it has been admitted that some of the documents and even witnesses who were examined in the former trial might be put forward in this case, the evidence in the present case will be essentially different. The items in dispute are different. The entries relate to different periods and naturally enough the witnesses to be examined and the documents to be proved will be different. Having regard to the fact that the items relate to an entirely different period as also their nature, there can be little doubt that the evidence in the two cases will not be identical. Different entries will have to be proved here than were necessary to be proved in the former case. Different witnesses may, therefore, be examined and the considerations which will weigh with the court will obviously be different. It cannot be said that the evidence of the two cases will be identical or that the trial now will be a repetition of what had taken place in the earlier trial. 6. Coming now to the question whether the present trial contravened the provisions of Cl. (2) of Article 20 of the Constitution or of S 403 of the Code of Criminal Procedure or of the principle of autrefois convict it may be pointed that the Learned Counsel has very frankly conceded that neither Cl. (2) of Article 20 of the Constitution nor S. 403 of Code of Criminal Procedure in terms applied to the facts of this case. He has, however, based his contention on the general principle of autrefois convict and for this proposition he has relied on the Andhra case referred to earlier. The facts in the Andhra case were that one Ramchandra Chetty was a Bill Collector attached to the Assistant Commercial Tax Officer, Tirupathi and in that capacity he used to collect money from the assesses. He was tried for an offence u/s 409 read with S. 477 A, IPC. The facts in the Andhra case were that one Ramchandra Chetty was a Bill Collector attached to the Assistant Commercial Tax Officer, Tirupathi and in that capacity he used to collect money from the assesses. He was tried for an offence u/s 409 read with S. 477 A, IPC. and S 5 (2) of the Prevention of Corruption Act for misappropriating a sum of Rs. 400 collected by him on 26-6-1950 and for fraudulently making false entries in respect of that sum. He was convicted and sentenced to imprisonment. Ramchandra Chetty was subsequently prosecuted u/s 5 (2) of the Prevention of Corruption Act and for the misappropriation of a sum of Rs. 4,7000 during the period 81-1951 to 31-3-1951, The charge sheet both in respect of the item of Rs. 400 collected by him on 26-6-1950 and the amount of Rs. 4,7000 misappropriated between 8-1-1951 to 31-3-1951, were presented simultaneously. The trial on the second charge sheet, however, waited. On these facts the learned Judge held that though S. 403, Code of Criminal Procedure was not in terms applicable to the facts nevertheless the principle underlying the maxim of autrefois convict was applicable and he made an order quashing the proceedings in the second sessions trial. As, however, appeared the reason which prevailed with the learned Judge was that on the date when the prosecution in respect of Rs. 400 had commenced the prosecution knew perfectly well what was the gross sum in respect of which the accused had committed criminal breach of trust and further that the second case was such in respect of which the Petitioner, i e. Ranchandra Chetty, could be proceeded against u/s 222 (2) of the CrPC. All the items involved in the first case and those involved in the second case were within the period of one year i.e. such as could be included in a single charge in view of S. 222 of the CrPC. The case of Sidh Nath Awasthi Vs. Emperor, AIR 1929 Cal 457 which was cited in that case was again a case in which the items to which the second prosecution related fell within the period of 12 months. The case of AIR 1943 304 (Lahore) similarly appeared of relate to items covered by a period of 12 months. The case of Sidh Nath Awasthi Vs. Emperor, AIR 1929 Cal 457 which was cited in that case was again a case in which the items to which the second prosecution related fell within the period of 12 months. The case of AIR 1943 304 (Lahore) similarly appeared of relate to items covered by a period of 12 months. In all these cases the primary consideration which weighed, there fore, was, firstly that the prosecution was aware when the first case started what amounts were embezzled or misappropriated and further they fell within the period of 12 months. A single charge could thus be framed in respect of them, in view of S. 222 of the CrPC. In the present case the facts, however, are very different. Here the items it dispute are of an entirely different period and are in any case beyond 12 months from any of the items in respect of which special trial No. 6 of 1953 was held. They could not, therefore, be made subject matter of a charge in that case. Beside there is no evidence that the prosecution was aware when the former case was started about the gross sum misappropriated by the applicant. All that we know is that in the former case the sanction was accorded on 10-8-1953 but in the present case not earlier than 14-12-1953, that is only four months had passed. It could not thus be said that the prosecution could be started on 10-8-1953, when the former case was commenced, in respect of these items as well. The sanction having been granted much later it could be started separately and subsequently. 7. Then the accused too are different. The sections under which they were charged here are also different. There was no charge in the former case u/s s. 409, 468 or 420, IPC which happen to be part of the charge in the present case. 8. For all these reasons I do not consider that the principle underlying the doctrine of autrefois convict can be extended to the present case. The Learned Counsel for the applicant has also urged that the continuance of the prosecution now after four years when the sanction itself was granted in 1953 would amount to an abuse of the process of law. It no doubt appeared that the charge sheet too was presented a day or so later. The Learned Counsel for the applicant has also urged that the continuance of the prosecution now after four years when the sanction itself was granted in 1953 would amount to an abuse of the process of law. It no doubt appeared that the charge sheet too was presented a day or so later. But it is not known under what circumstances the trial has waited for so long; whether it has been stayed at the instance of one or the other party or sue moto by the court or under any orders of some superior authority. In these circumstances it is not possible to rush to the conclusion that the trial has been maliciously and unnecessarily delayed such as would expose it to the charge of being an abuse of the process of the court. I do not think this contention either of the Learned Counsel can prevail. 9. In view of what has been said above the application fails. It is accordingly dismissed. The record may be sent down to the court below for proceeding further with the case.