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1999 DIGILAW 1311 (MAD)

Martandappa v. State of Mysore

1999-11-30

M.SADASIVAYYA

body1999
Order. The petitioner was the accused in Criminal Case No. 2093 of 1963 in the Court of the Second Additional Munsif and J.M.F.C. II Court, Dharwar. The petitioner was the secretary of a village panchayat. He had been charged for offences punishable under sections 409 and 477-A of the Indian Penal Code. The allegations were to the effect that on 14th June, 1963 he had misappropriated a sum of Rs. 498-60 P.; it had been further alleged that he had made false entries on 21st June, 1963. The learned Magistrate convicted the accused, for both the offences. For the offence under section 409 of the Indian Penal Code, the petitioner was sentenced to undergo simple imprisonment for a period of 6 months and to a fine of Rs. 100 and in default of payment of fine to undergo simple imprisonment for one month. For the offence under section 477-A of the Indian Penal Code, he was sentenced to undergo simple imprisonment for a period of 3 months. Against the said conviction and sentences an appeal was preferred. The learned Second Additional Sessions Judge of Dharwar heard the same, in Criminal Appeal No. 22 of 1967 on the file of his Court. He acquitted the petitioner of the offence under section 477-A of the Indian Penal Code; but, he confirmed the conviction and sentence for the offence under section 409 of the Indian Penal Code. It is thereafter, that the present Criminal Revision Petition has been filed in this Court. I have heard Sri L.G. Havanur, learned Advocate appearing for the petitioner and Sri Dayananda, learned Advocate appearing for the State Public Prosecutor. The only legal contention which has been urged by Shri Havanur is chat at the trial, there was a misjoinder of charges and that the same has occasioned a failure of justice. In support of this contention, the learned Advocate also sought to rely on the fact that it is on the ground that there was misjoinder of charges that the learned Sessions Judge has acquitted the petitioner for the offence under section 477-A of the Indian Penal Code. It would be relevant to refer to this part of the judgment of the learned Sessions Judge. This is what he has stated: “The false entries in Exhibit P-15 were made on 21st June, 1963. It would be relevant to refer to this part of the judgment of the learned Sessions Judge. This is what he has stated: “The false entries in Exhibit P-15 were made on 21st June, 1963. These entries were not made in the course of the misappropriation of the balance of Rs. 498-60 as on 14th June, 1963. The false entries made on 21st June, 1963 were not made in the course of the same transaction of misappropriation of Rs. 498-60 less Rs. 113-41 as on 14th June, 1963. Therefore, the offences of misappropriation and falsification of accounts, cannot be said to have been committed in the course of the same transaction in this case. Hence, the joinder of the charge under section 477-A in this case amounts to a misjoinder. (Vide C.N. Krishnamurthy v.State of Mysore1),In these circumstances, I am inclined to hold on point No. 2 in the affirmative”. In the absence of allegations necessary to bring the case under section 235(1) of the Code of Criminal Procedure, there should have been separate charges and separate trial for the two offences, having regard to what is required by section 233 of the Code of Criminal Procedure. When it was not the case of the prosecution that the offence of misappropriation and the offence of falsification of accounts were so connected with each other as to form the same transaction, there would have been a separate charge for each of those offences and each offence had to be tried separately. To that extent, the learned Sessions Judge was right in taking the view that there had been a misjoinder of charges. But, the further argument of Sri Havanur is that it must have been because the learned Sessions Judge had been satisfied that the misjoinder had occasioned a failure of justice, that he acquitted the petitioner of the offence under section 477-A of the Indian Penal Code. Following that line of argument, it is contended on behalf of the petitioner that when the irregularity had occasioned a failure of justice, there was no option for the Court, under section 537 of the Code of Criminal Procedure, but to order a re-trial and that therefore the learned Sessions Judge was in error in confirming the conviction for the offence under section 409 of the Indian Penal Code. While considering this contention, it has to be noticed that the learned Sessions Judge has not stated anywhere in his judgment that the misjoinder of charges, had, in fact occasioned a failure of justice. The learned Advocate for the petitioner has sought to rely on certain observations made by Hegde J., (as he then was) in Krishnamurthy v. State of Mysore1, in support of the proposition that when there is a contravention of the provisions of Chapter XXIX of the Code of Criminal Procedure, it results in prejudice. It seems to me, that those observations will have to be understood as having been made, not generally, but having regard to the facts of that particular case. In that case it had been alleged by the prosecution that the accused had committed breach of trust during a specified period; though, the prosecution was unable to establish that breach of trust had been committed during that particular period, it was sought to be contended on behalf of the prosecution that the accused ought to be convicted for breach of trust committed during an earlier period. It was while repelling such a contention that the learned Judge made the observations, as mentioned above. Those observations cannot be understood as being opposed to the requirements of section537 of the Code of Criminal Procedure. Amongst other things, section 537 of the Code of Criminal Procedure provides that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account of any error, omission or irregularity in the charges, including any misjoinder of charges, unless such error, omission or irregularity or misdirection has in fact occasioned a failure of justice. The explanation to that section further provides that in determining whether any error, omission or irregularity in any proceeding under the Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. The explanation to that section further provides that in determining whether any error, omission or irregularity in any proceeding under the Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. Having regard to the said provisions of section 537 of the Code of Criminal Procedure, it is clear that the learned Sessions Judge ought not to have set aside the conviction and sentence of the petitioner (imposed by the Magistrate), for the offence under section 477-A of the Indian Penal Code, unless the learned Sessions Judge found that the misjoinder had, in fact, occasioned a failure of justice. While determining the question as to whether the misjoinder had, in fact, occasioned a failure of justice, the learned Sessions Judge had also to take into consideration the fact that the accused had not at any stage of the trial taken objection to the joinder of the two charges. Without any regard to the requirements of section 537 of the Code of Criminal Procedure, the learned Sessions Judge set aside the conviction and sentence awarded by the trial Court, for the offence under section 477-A of the Indian Penal Code, on the mere ground of misjoinder. It was for the accused to have established that the misjoinder had, in fact, occasioned a failure of justice. As can be inferred from the decisions of the Supreme Court reported in (Chandi Prasad Singh v. State of Uttar Pradesh2), and (Mangaladas v. Maharashtra State)3, it is clear that even where there is irregularity of misjoinder of charges, the curative effect of section 537 of the Code will operate, unless it is established that the mis joinder had, in fact, occasioned a failure of justice. A similar view has been taken by this Court in Criminal Appeal No. 44 of 1966 (decided on 8th August, 1967). However, the State not having preferred any appeal against the acquittal of the petitioner for the offence under section 477-A of the Indian Penal Code, that acquittal should remain undisturbed. But, that is not to say that because of the wrong view taken by the learned Sessions Judge to record that acquittal, there must have been an acquittal also for the offence under section 409 of the Indian Penal Code. But, that is not to say that because of the wrong view taken by the learned Sessions Judge to record that acquittal, there must have been an acquittal also for the offence under section 409 of the Indian Penal Code. Undoubtedly, it was open to the accused to have urged and established that by reason of the mis joinder of charges, a failure of justice had, in fact, resulted in regard to the trial for the offence under section 409 of the Indian Penal Code. But no such contention had been urged either before the trial Court or before the Sessions Judge. Even though a ground has been taken in this revision petition that prejudice had been caused by the misjoinder of charges, it is clear that no such prejudice, had, in fact, been caused; because the accused had clear notice of the fact that he was being tried for an offence punishable under section 409 of the Indian Penal Code and he had an opportunity to meet that charge. Evidence had been adduced in support of that charge. No objection had been raised for the trial for an offence under section 409 of the Indian Penal Code along with the charge for an offence under section 477-A of the Code. In these circumstances, I do not find any substance in the contention to the effect that prejudice had been caused by the said misjoinder. This contention fails. The evidence adduced in the case has been considered by both the courts below. The fact of the misappropriation of this amount, had, practically been admitted by the petitioner in the course of the inquiry held by the Block Development Officer. There is really no good ground to interfere on the merits of the case. In view of what has been stated above, the conviction of the petitioner, has to stand. Sri Havanur submitted that the petitioner is a man aged more than 60 years and that he has already undergone imprisonment for about 9 days or more. He submitted that the interest of justice may be sufficiently met, if the sentence is reduced to the period of imprisonment already undergone. I think that this submission onbehalf of the petitioner may be accepted, subject to the sentence in regard to fine being allowed to remain undisturbed. He submitted that the interest of justice may be sufficiently met, if the sentence is reduced to the period of imprisonment already undergone. I think that this submission onbehalf of the petitioner may be accepted, subject to the sentence in regard to fine being allowed to remain undisturbed. In the result, this revision petition is dismissed subject to this modification, viz., that the sentence of imprisonment is reduced tothe period already undergone by the petitioner. S.V.S. ----- Revision petition dismissed; subject to modification.