minal Appeal No 109 of 1960
Appeal by special leave from the judgment and order dated April 18 1958 of the Andhra Pradesh High Court in Criminal Misc
Petition No 1421 of 1957
H J Umrigar and T M Sen for the appellant
The respondent did not appear
March 8
The Judgment of the Court was delivered by MUDHOLKAR J
The State of Andhra Pradesh has come up in appeal against the order passed in revision by the high Court of Andhra Pradesh quashing the charges framed against nine persons by Mr Syed Firasath Hussain Special Judge Vijayawada
The revision petition was preferred by only two of those persons
The accused No 1 Parthasarathi who was a lower division clerk in the Central Excise Circle Office at Narasaraopet was in charge of the TP 1 permit books transport permit intended for issue to Central Excise Officers for granting permits to persons applying bona fide for licences to transport tobacco
According to the prosecution two of those books containing 25 permit forms each were found missing from the aforesaid office
The allegation is that Parthasarathi sold those books to the remaining accused for a consideration of Rs 400
It was found during the investigation that seven permit forms from out of these books bad been used for transport of non duty paid tobacco after blanks in those forms had been filled and the signa tures of certain Central Excise Officers forged on them
Further according to the prosecution accused nos
2 to 8 got authorisation letters prepared with the help of accused No 9 by forging the signatures of the supposed consignors of the tobacco
With the help of 197 these documents the accused nos
2 to 8 are said to have transported tobacco to the licensed premises of certain persons and received payments for the tobacco delivered to them
The prosecution alleged that all this was done by all the accused by entering into a conspiracy the object of which was to procure and utilise blank TP 1 forms fill them in forge the signatures of Central Excise Officers and use them as genuine for the purpose of transporting tobacco without paying duty upon it
The charge sheet states that the accused nos
1 to 9 have committed the offence under section 120 B Indian Penal Code read with a 52 of Prevention of Corruption Act 1947 II of 1947
It further states that the accused No 1 had committed offenses under section 51c and 51d of Prevention of Corruption Act 1947 as also offenses under sections 420 463 and 464 Indian Penal Code
The accused nos
2 to 8 are said to have abetted all these offenses
Each of these accused is in addition said to have committed offenses under section 420 Indian Penal Code
The Subordinate Judge Vijayawada was appointed as Special Judge under the provisions of section 6 of the Criminal Law Amendment Act 1952 II of 1952 to try offenses under the Prevention of Corruption Act 1947
He framed the following charges CHARGE NO1
That you Accused 1 to 9 on or about 19 9 1953 to 5 11 53 agreed to do by illegal means to wit A 1 being a public servant in the Central Excise Department dishonestly sold two blank TP 1 books for Rs 350 to one late Jogayya and obtained pecuniary advantage for himself and A 2 to A 8 and that A 9 forged 7 TP 1 forms out of the above two books which forged TP 1s were used by A 2 A 3 A 5 A 7 A 8 with the assistance of A 4 and A 6 and cheated the merchants of Markapur and Cumbum by using the said forged TP 1s for the above purpose of cheating and that the above acts were done by all of you in pursuance of a conspiracy and that thereby you A 1 have committed an offence punishable under Section 120B of the IPC read with and d punishable under Sec
52 of the Prevention of Corruption Act and also under Sec
109 IPC read with Sec
490 466 and 467 of the IPC and that youA 2 to A 9 under See
120 B read with Sec
51c and d punishable under See
52 of Act 11 of 1947 and See
420 466 and 467 and 471 IPC and within my cognizance
CHARGE NO
That you A 1 being a public servant in the Central Excise Department being a Lower Division Clerk in the office of the Superintendent of Central Excise Narasaraopet Circle since 1951 and in such capacity were entrusted since 1951 with blank TP 1 books dishonestly sold two of the above said TP 1 books under your control to one late Jogayya for Rs 350 in or about the month of April 1953 and dishonestly fraudulently misappropriated the said amount and thereby committed the offence of misconduct punishable under Section 52 read with See
51c of the Prevention of Corruption Act 11 of 1947 and within my cognizance
CHARGE NO 111
That you A 1 in the above capacity by corrupt and illegal means and by abusing your position as a public servant obtained for yourself an amount of Rs 350 being the sale proceeds of the two Blank TP 1 books from one late Jogayya and obtained for A 2 to A 8 a pecuniary advantage of Rs 10120 14 0 th e amount of revenue due to the Central Govern ment and thereby committed the offence of Criminal misconduct punishable under See
52 read with Sec
51d of the Prevention of Corruption Act 11 of 1947 and within my cognizance
CHARGE TO
That you A 9 on or about the days between September and November 1953 forged 7 blank TP ls Nos 610432 610443 61046061044861044 610468 610446 as if they are documents to have been made by the Central Excise Officials in their official capacity by filling up the same within false particulars and fixing the signatures of different 199 Central Excise Officials so as to show that they are genuine TP 1 permits hat you thereby committed an offence punishable under Section 466 IPC and within my cognizance
CHARGE No V
That you A p on or about the days between September and November 1953 forged the 7 TP 1 permits mentioned in Charge No IV purporting to be valuable securities with intent and that they may be used for transporting tobacco as duty paid tobacco and that you thereby committed an offence punishable under Section 467 of the I P C and within my cognizance
CHARGE No VI
That you A 2 to A 8 on or about the days between 12 9 53 and 5 11 53 at Chodavaram Satulur Velpur and Tenali dishonestly used the above seven forged TP Is mentioned in Charge No IV as genuine Which you know at the time you used them as forged documents and transported 26989 lbs
non duty paid tobacco as duty paid tobacco by quoting the above fictitious documents as proof of payment of duty and that you  thereby committed an offence punishable under Section 465 and 471 of the IPC and within my cognizance
CHARGE No VII
That you A 2 to A 8 on or about the days between 19 9 53 and 6 11 53 at Cumbum and Mar kapur cheated 1 B Ranga Subbayya of Cumbum 2 P C h Venkata Subbaiah and 3 Shri B Seshaiah of Markapur and thereby dishonestly inducing them to deliver you Rs 10994 103 was the property of the above said persons and that you thereby committed an offence punishable under Section 420 IPC and within my cognizance
 While seven of the accused persons were content with the charges two preferred an application for revision before the High Court which as already stated accepted it and quashed the charges and directed the Special Judge to frame fresh charges on the lines indicated in the judgment
200 Mr Umrigar who appears for the State of Andhra Pradesh while conceding that Charge No 1 as it stands is involved and obscure and requires to be reframed takes exception to the observation of the High Court that the charge is bad for multiplicity
It not quite clear what the High Court me ant
If it meant that separate charges should be framed for different offenses there can be no objection but if it meant that all these accused cannot be tried at the same trial then we have no doubt that it was in error
The High Court pointed out that this is an omnibus charge containing as many as 203 offenses and that it is in direct violation of sections 234 235 and 239 of the Code of Criminal Procedure
No doubt sub section
1 of section 234 provides that not more than three offenses of the same kind committed by an accused person within the space of 12 months can be tried at the same trial
But then section 2351 provides that if in any one series of acts so connected together as to form the same transaction more offenses than one are committed by the same person he may be charged with and tried at one trial for every such offence
Therefore where the alleged offenses have been committed in the course of the same transaction the limitation placed by section 23141 cannot operate
No doubt the offence mentioned in charge No 1 is alleged to have been committed not by just one person but by all the accused and the question is  whether all these persons can be jointly tried in respect of all these offenses
To this kind of charge s239 would apply
This section provides that the following persons may be charged and tried together namely 1 persons accused of the same offence committed in the course of the same transaction 2 persons accused of an offence and persons accused of abetment or an attempt to commit such an offence 3 persons accused of different offenses committed in the course of the same transaction
Clearly therefore all the accused persons could be tried together in respect of all the offenses now comprised in charge No 1
We however agree with 201 Mr Umrigar that it would be desirable to split up charge No 1 suitably go that the accused persons will not be prejudiced in answering the charges and in defending themselves
The learned Judge has hold following a decision of a single Judge in In re Venkataramaiah 1 that no charge of conspiracy is permissible for committing which the conspiracy was entered into and which had actually been committed
In that case the learned Judge had observed as follows at p 132 Where the matter has gone beyond the stage of more conspiracy and offences are alleged to have been actually committed in pursuance thereof these two sections are wholly irrelevant
Conspiracy it should be borne in mind is one form of abetment see section 107 IPC and where an offence is alleged to have been committed by more than two persons such of them as actually took part in the commission should be charged with the substantive offence while those who are alleged to have abetted it by conspiracy should be charged with the offence of abetment under section 109 IPC The Explanation to section 109 makes this quite clear
An offence is said to be committed in consequence of abetment when it is committed in pursuance of the conspiracy and the abettor by conspiracy in made punishable under section 109 with the punishment provided for the actual offence
 We are unable to accept this view
Conspiracy to commit an offence is itself an offence and a person can be separately charged with respect to such a conspiracy
There is no analogy between section 120B and section 109 IPC There may be an element of abetment in a conspiracy but conspiracy is something more than an abetment
Offences created by section 109 and 120B IPC are quite distinct and there is no warrant for limiting the prosecution to only one element of con spiracy that is abetment when the allegation is that what a person did was something over and above that
Where number of offences are committed by 1 AIR 1935 Mad 130 132 202 several persons in pursuance of a conspiracy it is usual to charge them with those offences as well as with the offence of conspiracy to commit those offences
As an instance of this we may refer to the case in section Swaminatham vs State of Madras 1
Though the point was not argued before this Court in the way it appears to have been argued before the Madras High Court and before the High Court of Andhra Pradesh this Court did not see anything wrong in the trial of several persons accused of offences under section 120B and section 420 IPC We cannot therefore accept the view taken by the High Court of Andhra Pradesh that the charge of conspiracy was bad
If the alleged offences are said to leave flown out of the conspiracy the appropriate form of charge would be a specific charge in respect of each of those offences along with the charge of conspiracy
Before leaving this point we would like to refer to the decision in R vs Dawson 2 which Mr Umrigar very fairly brought to our notice respondents being ex parte
In that case Finnemore J who delivered the judgment of the Court observed Now with regard to the first count for con spiracy  this court feels it is desirable Jo say something
This court has more than once warned of the dangers of conspiracy counts especially these long Conspiracy counts which one counsel referred to as a mammoth conspiracy
Several reasons have been given
First of all if there are substantive charges which can be proved it is in general undesirable to complicate matters and to lengthen matters by adding a charge of conspiracy
Secondly it can work injustice because it means that evidence which otherwise would be inadmissible on the substantive charges against certain people becomes inadmissible
Thirdly it adds to the length and complexity of the case so that the trial may easily be well High unworkable and impose a quite intolerable strain both on the Court and on the jury
The learned Judges in fact quashed the conviction 1 AIR 1957 SC 340 343 344
2 1960 1 All
ER 558 563
203 for conspiracy in the case before them
We agree that it is not desirable to charge the accused persons with conspiracy with the ulterior object of letting in an evidence which would otherwise be inadmissible and that it is undesirable to complicate a trial by introducing a large number of charges spread over a long period
But then this is only a question of propriety and it should be left to the Judge or the magistrate trying the case to adopt the course which he thinks to be appropriate in the facts and circumstances of the case
It cannot be said as a matter of law that such a trial is prohibited by the Code of Criminal Procedure
The High Court has further held that the learned Special Judge had no jurisdiction to try the offences under section 120B read with sections 466 467 and 420 because he was appointed a Special Judge under the Criminal Law Amendment Act only for trying offences under the Prevention of Corruption Act
No doubt he was appointed in the circumstances stated by the High Court and therefore he will have that jurisdiction which he is competent to exercise under the Prevention of Corruption Act or the Criminal Law Amendment Act
Section 6 of the former provides that the State Government may appoint a Special Judge to try the following offences a an offence punishable under section 161 section 165 or section 165A of the Indian Penal Code Act XLV of 1860 or sub section 2 of section 5 of the Prevention of Corruption Act 1947 11 of 1947 b any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause a
Sub section
1 of section 7 provides that notwithstanding any
thing contained in the Code of Criminal Procedure 1898 or in any other law the offences specified in sub section
1 of section 6 shall be triable by special judges only
Sub section
3 of section 7 provides that when trying any case a special judge may also try any offences other than an offence specified in section 6 with which the accused may under the Code of Criminal Procedure 1898 be charged at the same trial
204 Clearly therefore accused No 1 could be tried by the Special Judge for offences under section  120 B read With sections 466 467 and 420 IPC Similarly the other accused who are said to have abetted these offences could also be tried by the Special Judge
The view of the High Court is thus erroneous and its directions with respect to these offences are set aside
The High Court has further held that the provisions of a 196A2 of the Code of Criminal Procedure have not been complied with and therefore the charges in respect of offences under as
466 and 467 could not be enquired into by the Special Judge section 196A2 of the Code of Criminal Procedure reads thus No Court shall take cognizance of the offence of criminal conspiracy punishable under section 120B of the Indian Penal Code 2 in a case where the object of the conspiracy is to commit any non cognizable offence or a cognizable offence not punishable with death imprisonment for life or rigorous imprisonment for a term of two years or upwards unless the State Govern ment or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the State Government has by order in writing consented to the initiation of the proceedings Offences under sections 466 and 467 are admittedly non cognizable and therefore it would seem from the plain language of sub section
2 that for the offences under section 120 B read with sections 466 and 467 IPC the sanction of the Government will be necessary
Mr Umrigar referred us to the decision in Durgadas Tulsiram Sood vs State 1 and said that since the object of the conspiracy was to cheat the Government that is to commit an offence under section 420 IPC and the offences under as
466 and 467 were only means to that end the trial was not vitiated simply because no sanction was obtained for prosecuting the accused for offences of criminal conspiracy to commit non cognizable offences under as
466 and 467 IPC
We do not think it necessary to say anything on the point because in 1 ILR 205 any case the case has to go back to the Special Judge for re framing the charges and there is time enough for the Government to consider whether it should accord sanction to the prosecution of the various accused for the non cognizable offences alleged to have been committed by them in pursuance of conspiracy assuming of course that sanction is necessary
In the result we allow the appeal and setaside the order of the High Court and direct the Special Judge to frame fresh charges and proceed with the trial
The matter has been pending for a long time and we direct that the trial will proceed with
all expedition
Appeal allowed
Retrial ordered


Summary:
For the accounting year 1941 the assessee s profits from his share in an unregistered firm were
set off against his losses in the individual business and the Income Tax Officer determined the loss to be carried forward at RS
53840 but did not notify to the assessee by order in writing the amount of the loss as computed by him as required by section 243 of the Act
The assessee appealed against the assessment but did not question the amount of the loss which had been determined
In the year 1942 43 the assessee claimed to reopen the question of the loss to be carried forward stating that it was RS
2116760
This contention was rejected by the Tribunal
The contention was again raised by the assessee in the assessment years 1948 49 and 1949 50
The question was whether the loss which had been determined and ordered to be carried forward must be deemed to have become final because no appeal was filed against that determination
Held that computation of the amount of loss under section 24 Of the Income tax Act does not become final unless the Income tax Officer notifies by order in writing the amount of the loss as computed by him to the assessee
The assessee was entitled to have 187 the loss redetermined in a subsequent year though he had not filed an appeal against the determination of the loss but no appeal could be filed in the absence of an order in writing
Seth jamnadas Daga vs The Commissioner of Income tax   applied