Narayana Pillai v. State of Kerala — 1971 DIGILAW 191 (KER)

Judgment :- 1. This criminal miscellaneous petition has been preferred on behalf of accused 1 and 2 in C. C. 101/71 on the file of the Addl 1st Class Magistrate, Quilon. They are charged with offences falling under S.409 and 477 A with 34 IPC. They were the President and Secretary respectively of Co-operative Bank No, 1649 at Paravoor. On the basis of a statement filed by the Deputy Registrar of Co-operative Societies, Quilon before the Superintendant of Police, Quilon, Crime 117/68 was registered against these accused. In the F. I. statement, acts of misappropriation of the funds of the society were enumerated. After due investigation the police took up 3 items of defalcations to form the subject matter of the charge and C.C. 29/69 was accordingly initiated on the basis of that charge. Evidence, however, was let in concerning only one of the 3 defalcations covered by the charge. The trial which started on 24 21969 ended on 12 3 70 convicting the 1st petitioner and acquitting the 2nd petitioner. But on appeal the learned Sessions Judge acquitted the 2nd petitioner also. On the conclusion of the trial by the learned Magistrate which ended on 12-3-70, crime No. 23/70 was registered the next day by the police in respect of 'another misappropriation and that case is now pending in the Addl. First Class Magistrate Court, Quilon as C.C.101/71. The case of the petitioners in the present petition, which is one filed under S.561- A of the Code of Criminal Procedure is that the subject matter of the present charge had already come to light and the police investigated that charge also on the first occasion and they could have included if they wanted, that charge also in the previous case C. C. 29/69. Having not done that, it is not open to the police to start the present prosecution, the purpose of which is only to harass the accused. The jurisdiction of this court vested under S.561-A Cr. P. C. is, therefore, invoked. 2. It is well settled that a second trial, in the above circumstances, is not barred by any of the provisions of the Criminal Procedure Code. In (1910) 12 Born. L. R.226, the accused was tried for the offence of criminal breach of trust as a public servant in respect of a sum of Rs. 12 and odd and was acquitted of the offence. In (1910) 12 Born. L. R.226, the accused was tried for the offence of criminal breach of trust as a public servant in respect of a sum of Rs. 12 and odd and was acquitted of the offence. He was again tried for the offence of criminal breach of trust in respect of a sum of Rs. 19 and odd misappropriated during the same period and was convicted. On appeal, the Sessions Judge acquitted the accused on the ground that his previous acquittal was a bar to the second trial. The Sessions Judge took the view that the first trial must be treated as being for the same offence as that in respect of the second amount, because both the amounts were misappropriated during the same period. According to him, the prosecution having made its election under S.222(2) of the Criminal Procedure Code to prosecute the accused in respect of one out of the two amounts misappropriated by him during the same period, it was estopped by the provisions of S.403 from instituting the second prosecution in respect of a fresh item falling within the same period. This view was reversed in appeal by the High Court (Chandavarkar and Knight, JJ ) on the ground that the normal rule was the one contained in S.233 of the Code that for every distinct offence there shall be a separate charge and every such charge shall be tried separately. One of the exceptions to this rule was contained in S.234 which provides that more than one charge but exceeding three charges can be included in one trial, provided exceeding three charges can be included in one trial, provided the offences charged are of the same kind and the offences in respect of those charges have been committed within a space of twelve months from the first to the last of such offences. 3. In AIR. 1945 Bom. 413, the accused was found to have misappropriated certain sums belonging to government which he repaid subsequently. He was charged with offences under S.409 and 466 of the Indian Penal Code in respect of two items only, as having been misappropriated during a certain period of time. The trial was held before the sessions judge, who, agreeing with the unanimous verdict of the jury as regards the charge under S.409 and the opinion of assessors as regards the charge under S.466, acquitted the accused. The trial was held before the sessions judge, who, agreeing with the unanimous verdict of the jury as regards the charge under S.409 and the opinion of assessors as regards the charge under S.466, acquitted the accused. The accused was then tried by another sessions judge for an offence under S.409 of the Penal Code in respect of an amount which formed part of the gross amount, which was mentioned in the earlier trial but which was not included in the two charges which alone were picked up in that trial. The accued contended that the second trial was barred under S.403 of the Criminal Procedure Code and he was therefore entitled to an acquittal. The sessions judge acquitted the accused holding that though it was technically correct to try the accused for what was a separate offence it was undesirable that the accused should be so tried for an offence which could have been included in the first trial. A Division Bench of the Bombay High Court held that "even though the plea of autrefois acquit under S.403 was not technically available to the accused, the principle of it was available to him in the interests of justice and that he should not be tried again for the offence under S.409." The principle in furtherance of which the acquittal was made in that case was that even though the second trial was not barred, in the interests of justice it was not desirable to have the second trial. As in the case above cited, in the one on band also, the subject matter of the second charge was known to the police even on the earlier occasion when the first three charges were put forward. But in all these cases the fact to be noticed is that the offences charged must be of the same kind. In the instant case, the second charge is, however, based on a different set of facts not in any way similar to the facts which formed the subject matter of the first charge. The first charge was in respect of the misappropriation by the accused of the collections due to the society from the R. Ds. (retail depots) whereas, the second charge, which is now impugned before me, is in respect of a sum of Rs. 3000/- covered by a cheque issued by the president to the Secretary. The first charge was in respect of the misappropriation by the accused of the collections due to the society from the R. Ds. (retail depots) whereas, the second charge, which is now impugned before me, is in respect of a sum of Rs. 3000/- covered by a cheque issued by the president to the Secretary. The cheque was cashed by the Secretary and the amount was misappropriated. The amount covered by the cheque was part of the funds of the society. It was thus a daring act of misappropriation. The defence open to the accused in respect of misappropriation of the R. D. collections, might not normally be open to them in the second misappropriation which was in respect of amounts which lay in the bank to the credit of the society. 4. S. 234 of the Code under which three offences of criminal breach of trust can, under certain circumstances, be included in one trial is an enabling provision and is in the nature of an exception to S.233 of the Code. Therefore, if each of the several offences is tried separately there is nothing illegal about it. A person who commits breach of trust in respect of several amounts can be prosecuted as many times as the number of individual items misappropriated by him."'Courts have held that it is not desirable that in such cases the accused should be tried as many times when he could have been tried for all of them at one trial. In AIR. 1917 Mad. 524 the Madras High Court took the extreme view that by reason of the provisions contained in S.222 and 234 the second prosecution of an accused for criminal breach of trust is barred if the amount included in the second trial is alleged to have been misappropriated during a period which is covered by the first prosecution. In other words, the view held by the court was that such second prosecution would be illegal. It appears that no other decision has gone so far as to declare such second prosecutions illegal. A vast majority of decisions held the contrary view, viz., that the second prosecution is not barred. Even if the period covered by the subsequent prosecution overlaps the earlier prosecution, still the second prosecution is not barred by reason of the provisions contained in S.403 of the Crl. A vast majority of decisions held the contrary view, viz., that the second prosecution is not barred. Even if the period covered by the subsequent prosecution overlaps the earlier prosecution, still the second prosecution is not barred by reason of the provisions contained in S.403 of the Crl. Pr.Code; but in the interests of justice courts have held that the second trial in such circumstances is not proper. Decisions have held that even though the plea of autrefois acquit under S.403 was not technically available to the accused, the principle of it was available to him in the interests of justice and that the accused should not be tried again in respect of the third offence. It is in this set up that the inherent power of this court under S.561 A is sought to be invoked. The power under S.561 A is exercised under three circumstances and they are: "(i) to give effect to any order under the Code; (ii) to prevent abuse of the process of any court; and (iii) otherwise to secure the ends justice." In the present case the inherent power is sought to be invoked under the second and third situations, viz., "to prevent the abuse of the process of any court, or otherwise to secure the ends of justice." As observed by the Bombay High Court in Chudaman Narayan Patil v. State (AIR. 1969 Bom.1), "what constitutes sufficient reason for not permitting subsequent proceedings to continue must evidently depend upon the facts and circumstances of each case." As seen from some of the decisions, if the subsequent prosecution is intended merely to harass the accused, it must be held that it is an abuse of the process of the court because the purpose behind such prosecutions is not vindication of justice but retribution. But in the present case there is little scope for such an argument because the second prosecution is very much different from the previous prosecution; in that the texture of the charge itself is different. The argument that in the interests of justice or to avoid the abuse of the process of the court, this court should intervene is not available in the circumstances of the present case. It cannot be said that the purpose behind the present prosecution is retribution or satisfaction of public indignation. The argument that in the interests of justice or to avoid the abuse of the process of the court, this court should intervene is not available in the circumstances of the present case. It cannot be said that the purpose behind the present prosecution is retribution or satisfaction of public indignation. Under the former category, viz., R.D, defalcations, there are about 50 instances and if the prosecution is so inclined, 50 different charges could be launched against the accused. That the prosecution is not trying to do and even on the first occasion they chose only to lead evidence in one case and leave aside the rest. It was stated before me by the learned State Prosecutor that it is not the intention of the government to trouble the accused with further prosecutions in respect of the R. D. defalcations; but the present charge which is in respect of embezzlements of the funds of the society kept in the bank, by issuing cheques, cannot be condoned or abandoned on the ground that to secure the ends of justice such a course is called for. I do not see any justification for interference under S 561A of the Code at this stage. The petition is, therefore, dismissed. A. N. K. Dismissed.