Din Dayal Shrivastava vs The State Of Vindhya Pradesh on 21 January, 1953

Madhya Pradesh High Court
Din Dayal Shrivastava vs The State Of Vindhya Pradesh on 21 January, 1953
Equivalent citations: 1953 CriLJ 1218
Bench: K C.


Krishnan, J.C.

1. This is an application by one of the two persons on trial in six cases (numbers 352 and 355-59) before the M.M. Tikamgarh under Section 409, Penal Code, and Sections 409/109, Penal Code, praying that these trials might be quashed as an abuse of the process of the Court; he avers that he has been tried on a charge of abetting criminal breach of trust and acquitted. The same materials and evidence have been adduced here, though ostensibly the items of payments introduced in these cases are different from those in the first case. A co-accused, Chandra Bhan Bhatnagar, was convicted in that first case under Section 409, Penal Code, as the principal offender and sentenced to 3 years rigorous imprisonment and to a fine. Though he has not made a similar application, whatever has been said by this applicant applies with great force, to him also.

2. The questions for decision are, first-whether these cases come strictly within the term of Section 403, Criminal P.C.; and secondly even if they do not, whether the High Court can interfere in exercise of the general powers under Section 561A, Criminal P.C. at this stage; the ground is that these six cases amount to abuse the process of Court.

3. The present applicant was the Head Clerk, and Chandrabhan Bhatnagar was the Motor Licensing Assistant, in the office of the S.P. Tikamgarh, between October 1949 and July 1950. In those days the different fees payable by the owners of cars and stage carriages were paid in cash to the motor clerk. Sometime in July 1950, it was found that out of such receipts, a gross total of Rs. 3,800/- in round figures, received in small amounts from, a number of licensees and permit holders, had not been entered in the proper books or deposited into the treasury. These were either the, fees that were payable to government under the rules, out of which a gross sum of Rs. 3,163,/12/- had disappeared, or amounts which, not really payable, were still handed in by ignorant licensees. Out of these sums a gross total of Rs. 660/- had not been accounted for. For example many of them believed that they were liable to pay what was called the “road fee” as well as another small fee for the renewal of the registration. One of them would pay, let us say Rs. 28/- in all, Rs. 25/- as the road fee or registration fee which was really due and Rs. 3/- as renewal fee which was not. Whether the latter were inadvertent and mistaken payments, or whether they had been induced by false representations on the part of the assistants incharge is a question, the answer to which is of no consequence here. In fact, neither in the first case, nor in the present six ones was there a charge of cheating. In other words, the prosecution has proceeded throughout on the assumption that these extra payments were made and received under an honest misapprehension of the rules, and not on anybody’s false representations.

4. In 1951 these two were prosecuted; Bhatnagar on a charge of criminal breach of trust under Section 409, Penal Code and this applicant Din Dayal Srivastava, on a charge of abetting him by aiding. The witnesses who have been examined in these 6 cases were examined in that case; and each of them stated that he paid so much out of which so much, he learnt, was the proper fee, and so much an overpayment which he then believed was due. In framing the charge, however, only the first set of payments were noticed. These payments-were totalled and a single charge was framed -under Section 222, Criminal P.C. in regard to the breach of trust of the gross sum of Rs. 3163/- between two specified dates, a period of less than one year. Committed to the Court of Session, that case ended in the conviction of Bhatnagar on the principal charge under Section 409, Penal Code, and the acquittal of the present applicant on the charge of abetment. The appeal of the former was dismissed by this Court; there is nothing on record to show that the State asked for an enhancement of sentence. In regard to Din Dayal, the finding was that it was no part of his duties to, and it was not proved that he actually did receive any of the sums. The only witness in that case, Kamta Prasad, who stated that he actually put a sum of Rs. 282/- into the hands of Din Dayal, and not into the hands of Bhatnagar, was disbelieved by the Sessions Court. It was found that Kamta Pd. did not go and pay, but Govind Prasad went and gave it to Bhatnagar, the motor clerk. If Din Dayal had neglected his official duties of supervision and check, it was held in that case, it did not become the offence of abetment. It was no criminal offence, though it might lead to his dismissal from service.

5. Soon after, six new cases were started; instead of a single one under Section 222, Criminal P.C. for a gross sum, as in the first case there are six different cases, one for each payment. This applicant came up in revision but he was asked to move the trying Court. But his prayer has been rejected there, and charges have been framed. So he has come again, with a prayer for the quashing of the trials. The charges, it should be noted, are exactly the ones of criminal misappropriation and abetment; there is none for cheating. In all these 6 cases we have exactly the same story; the same witnesses come and say that they paid so much to Chandra Bhan (and in one case to Din Dayal) under the impression that this was payable to government. Each witness mentions the inadvertent overpayment only here, whereas in the previous case he mentioned this as well as the sum properly due to government. For example, if in the previous case the witnesses had stated that he paid Rs. 28/- of which Rs. 25/- was the tax and Rs. 3/- an inadvertent overpayment, now in the corresponding case he states that he paid Rs. 3/- under the impression that this was due. The prosecution justifies this procedure by referring to a petition it had filed in the first case. The state authorities had noted in it, that they were proceeding in regard to the gross total of the sums that were paid and were actually due), as for the others, they were still considering. Since then they have taken six individual items and run a case in regard to each. In one of them (No. 356) we have a specific allegation against Din Dayal; Kamta Prasad, who said in the first case that he paid Din Dayal Rs. 282/-, Rs. 250/-, as the tax proper and Rs. 32/- as “the registration renewal fee”, says here also that he paid Din Dayal Rs 32/- under the impression that this was really payable to government. In other cases there is the same averment as in the previous case that the motor clerk received the sums and that the head clerk was responsible for the supervision. After the examination of the witnesses, charges were framed. The prayer of this applicant was dismissed on the ground that these cases relate to different items of payment.

6. The subject matter of the charges of criminal misappropriation not being identical, the Magistrate’s Court held that Section 403, Cr.P.C. did not apply. It can, and has been, contended here that Section 403, Criminal P.C. does still apply in spirit, if not literally. Further, it is urged that the provisions of Section 403, Criminal P.C. are being evaded, this being an abuse of the process of the Court, the High Court should use the powers given by Section 561A, Criminal P.C.

7. Usually, the High Court will not interfere either in exercise of revisional powers, or of the general powers under Section 561A, at interlocutory stages. To do so freely will obstruct the prompt disposal of judicial work, and lower the self-confidence of the presiding Courts, who should go on unhampered by dictation from above till their work is complete. However, there may be cases literally crying for interference. Where it is obvious that a trial is mockery of justice, then it is the duty of the High Court to stop it immediately. It is pointless to say in such cases that the accused should put up with the trouble and expense, and move the higher Courts, in good time, in appeal or revisions as the case may be. A High Court should under Section 561A Criminal P.C. end a harassment if it is patently-gratuitous.

8. In regard to the present applicant it is what under the English Law is called autrefois acquit. In regard to Chandrabhan Bhatanagar it is a case of autrefois convict.

The test is whether the former offence and the offence now charged have the same ingredients in the, sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of autrefois acquit is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter. (p. 153. Halsbury’s Laws, 2nd Edn., Vol. 9)

The subsequent indictment must be substantially covered by the previous charge. It is sufficient if, on the previous indictment, the prisoner could have been convicted of the offence with which he is subsequently charged, the test being, does an acquittal am the first charge necessarily involve an acquittal on the second charge Rex v. Barron (No. 2) (1914) 2 KB 570 ((sic)). (p. 255, Stephen’s Commentaries, 21st Edn., Vol. 4)

Section 403, Criminal P.C. uses these words “same offence” and also “any other offence for which a different charge might have been made under Section 236 or for which he might have been convicted under Section 237, I.P.C“. Section, 403, Criminal P.C. would have clearly governed this case but for the fact that the prosecution intentionally kept in reserve, part of the subject matter of the breach of trust. What the prosecution intended at that stage is not clear; probably it wanted to drop these items altogether or was further investigator whether a case of cheating was made out. But now a third course is taken. They have not said that these small amounts were obtained by false pretences with a view to misappropriate them; then it could be urged that these men are before us for altogether new offences. Now, in regard to these sums also, it is alleged that there was criminal breach of trust and abetment exactly in the same manner in regard to other sums. It is just as if in the first case the prosecution alleged that the accused beat complainant 20 times with a stick, and stated that they were proceeding for the first 15 blows, and then started a new case in regard to the remaining five blows. In all these cases exactly the same evidence is being adduced bf exactly the same witnesses. It is not even as if the witness went and paid one sum and being told that something more was payable went on second time with the additional amount. He paid the entire sum on the first occasion itself, in fact the only occasion on which he paid. In these circumstances it Hs difficult to understand such piecemeal prosecution.

9. The case law on this subject makes it amply clear that such a procedure is an abuse of process which the High Court should stop even in interlocutory stages, whether or not Section 403, Criminal P.C. applies in terms. Those reported in Abdul Wali v. Emperor AIR 1933 Oudh 387 (B) and Sheo Saran v. Jitendra Nath AIR 1928 Oudh 292 (C), mention this point generally, and set out the circumstances in which High Court should exercise its powers under Section 561A, Criminal P.C. That reported in Chamanlal v. Emperor AIR 1943 Lah 304 (D) is very similar to the present one. There ware 8 items of misappropriation in that case, and the evidence in regard to them was the same. The accused was acquitted at the first instance on 3 charges and subsequently he was put on trial on the 5 remaining charges. The evidence for these remaining charges being identical with that for the three of which he had been acquitted, it was held an abuse of the process of the Court, and the trial was quashed. The case reported in Emperor v. Anant Narayan AIR 1945 Bom 413 (E), there were three offences of the same nature. The first two having ended in acquittal it was held that the trial of the third offence should be quashed. Among the earlier cases discussed in this judgment is Sidh Nath v. Emperor AIR 1929 Cal 457 (F), which is of special significance in regard to Chandrabhan Bhatnagar, who having been convicted for the breach of trust in regard to a gross amount, is again being tried in these six cases, each for a small sum not included in the first charge. That Calcutta case came before the High Court after a conviction in the second case, the accused having been already convicted in the first. It was ruled,
Though Section 403, Criminal P.C. may not strictly apply in its terms, still there is abundant authority for the view that the second trial in the circumstances such as this ought not have been allowed to have been held.

In the case reported in Nandram Agarwala v. Emperor AIR 1947 All 348 (G), the facts are dissimilar, but the principles upon which the High Court would interfere under Section 561(A), Criminal P.C. have been forcibly described.

High Court is reluctant to interfere with the ordinary course of the law and substitute its own judgment for the judgment of the Magistrate, who is trying the case, before the completion of the trial. But where the facts are so preposterous that the High Court feels satisfied that on the admitted facts there is no case against the accused, and where the High Court is clearly of the opinion that a further prolongation of the prosecution would amount to harassment and abuse of the process of the Court, it is the duty of the High Court to interfere under Section 561A, Criminal P.C. and put an end to this abuse.

10. Now to take up the position of Chandrabhan. He was tried for the gross sum and has already been convicted and is serving a sentence. If the State authorities thought that the sentence of three years was inadequate they should have filed an application for enhancement. They did not. Any way, a sentence of three years and a fine and a loss of employment are in all conscience sufficient to meet the ends of justice here. Whether the gross sum was Rs. 3161/- as was noted in the charge, or Rs. 3,800/- and odd, as it could have been, the evidence is the same. The prosecution excuse that they had mentioned in the first trial, that they were not going to include this gross sum of Rs. 661/- in this charge, is of no value. If the Courts convict Bhatnagar in one or more of these cases, the new sentences will at all events have to be made concurrent with the sentence already imposed in the first case. Fortunately for him the matter has come to the notice of this Court well before that stage, on this application of the accused.

11. As for Din Dayal, he was tried on exactly the same materials, and the same evidence from the same witnesses, and acquitted. In five of these cases, there is only the old story that he had to supervise and that Bhatnagar alleged that he had given the money to Din Dayal; these were considered by the Sessions Judge insufficient to justify a conviction. In the 6th case (No. 356) Kamta Pd. says that he gave Rs. 32/- into the hands of Din Dayal. In the Sessions case he mentioned a total of Rs. 282/- out of which he said Rs. 250/- was the tax, and Rs. 32/- renewal fee. Kamta Prasad was disbelieved, it being found that the sum was paid by Govind Prasad into the hands of Chandrabhan. Still the same story is being introduced again.

12. The result is that it is ordered that the charges against both the accused in all these six cases (Nos. 352 and 355-359) be quashed, and the accused be discharged from bail taken in these cases.

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