iminal Appeal No 39 of 1961
Appeal by special leave from the judgment and order dated January 30 1960 of the Andhra Pradesh High Court in Criminal Appeals Nos 277 and 278 of 1957 and Criminal Revision Case No 810 of 1957
ASR Chari K R Choudhry and PD Menon for the appellant
Bhimasankaran and R Thiagarajan for respondent No 1
R Mahalingier for respondent No 2 1963
April 23
The judgment of the Court was delivered by MUDHOLKAR J
The respondent No I was tried before the Court of Sessions Visakhapatnam for offences under section 120 B Indian Penal Code section 409 section 477 A and section 471 read with section 467 IPC while respondent No 2 was tried for an offence under 301 section 120 B and for offences under sections 409 read with section 109 477 A and 471 read with section 467 IPC Each of the respondents was convicted of the first two offences but the respondent No I alone was convicted of the other two offences
Various sentences were passed against them by the Additional Sessions judge Visakhapatnam who presided over the court
The respondents preferred appeals before the High Court challenging their convictions and sentences
The State on the other hand preferred an application for revision under section 439 Cr
PC for the enhancement of the sentences passed on the respondents
The High Court allowed the two appeals acquitted the respondents and dismissed the application for revision preferred by the State
The State of Andhra Pradesh has come up before this Court in appeal by obtaining special leave under article 136 of the Constitution
The prosecution case in so far as it is material for the decision of this appeal is as follows  In the year 1929 the Andhra Engineering Co which was originally a partnership firm formed by one DLN Raju was converted into a private limited company with its headquarters at Visakhapatnam
We shall refer to this company throughout as the AECO
It obtained licences from the Government under the Electricity Act for supply of electrical energy to Visakhapatnam Anakapalli and some other places
As the AECO did not have the necessary capital to undertake the work Raju floated in the year 1933 a public limited company called Visakhapatnam Electric Supply Corporation Ltd referred hereafter as VESCO and another in the year 1936 called the Anakapalli Electric Supply Corporation Ltd The AECO transferred its licences for the supply of electrical energy to the consumers of Visakhapatnam to VESCO and similarly transferred to AECO the licence to supply 302 electrical energy to consumers at Anakapalli
The AECO was appointed Managing Agent for each of these corporations under separate agreements
Some time later other industrial concerns the Andhra Cements Ltd Vi jayawada and the East Coast Ceremics Rajahmurthy were started apparently by Raju himself and the AECO was appointed the Managing Agent of each of these concerns
The original managing agency agreement in favour of AECO with respect to VESCO was for a period of 15 years ie from 1933 to 1948 and was later renewed for the remaining term of the currency of the licence granted by the Government under the Electricity Act
A mention may be made of the fact that in June 1952 the VESCO undertaking was acquired by the Government under the provisions of the  Electricity Undertaking Acquisition Act but nothing turns on it
The VESCO had its own Board of Directors while the AECO had also its own separate Board of Directors
The VESCO had no Managing Director but at each meeting of its Board of Directors one of the Directors used to be elected Chairman
The same practice was followed at the meeting of the general body of the shareholders
The AECO on the other band always had a Managing Director first of whom was DLN Raju
He died in the year 1939 and was succeeded by RKNG Raju an Advocate of Rajahmundry
This person however did not shift to Visakhapatnam on his becoming the Managing Director but continued to stay most of the time at Rajahmundry
According to the prosecution both these concerns were running smoothly and efficiently during the lifetime of DLN Raju because he was personally attending to their affairs
His successor however apart from the fact that be continued to be staying mostly at Rajahmundry was also interested in several other ventures including a sugar factory at Dewas in Central India
303 Eventually many of those ventures failed
According to the prosecution the second Raju was not bestowing sufficient care and attention on the affairs of VESCO
The AECO as Managing Agents of VESCO had appointed in the year 1939 one DV Appala Raju a trusted employee as its representative and as the secretary of VESCO
In 1944 this person resigned from his appointments and started his own business in radio and electrical goods in the name of D Brothers
He was succeeded by T Visweswara Rao PW 6 an employee of the AECO
The respondent No 1 Ganeswara Rao was also an old employee of AECO having been appointed a stenotypist in the year 1923 on an initial salary of Rs 40 pm
Eventually he became the Head Clerk therein
He pressed his claim for appointment as Secretary of VESCO and representative of the Managing Agents at Visakhapatnam and R HG
Raju appointed him to that post
All this is not disputed
The respondent No 1 even after his appointment on two posts connected with VESCO continued to work with the AECO also whose business had by then been confined only to that of Managing Agents of the four companies floated by DLN Raju
It is the prosecution case that as Secretary of VESCO and the resident representative of the Managing Agents the respondent No I was attending to the day to day affairs of VESCO which included the receiving of all sums of money due to VESCO spending money for the purpose of VESCO attending to the appointment supervision and control of the staff of VESCO purchasing materials required for the purpose of VESCO and supervising over the accounts of VESCO
He was thus all important with respect to the every day affairs of 304 VESCO
His dual capacity enabled the respondent No I to earn the confidence not only of the Directors of AECO but also of those of VESCO
The accounts maintained by the VESCO used to be explained by him not only to the Directors but also to the shareholders
The knowledge of the Financial position of VESCO obtained by them used to be derived essentially from the respondent No 1
As Secretary of VESCO it was his duty to convene the meetings of the Board of Directors to present before them the periodical statement of receipts and expenditure of VESCO to convene meetings of the General Body to prepare the Managing Agents  report and the Director s report as also to see to the presentation of auditors  report and the statement of accounts
The explanations of the Managing Agents and the Directors of VESCO with respect to the items mentioned in the orders of the Board used also to be placed by him before the shareholders
It was also his duty to have the accounts of VESCO audited by the auditors elected by the general body and to produce before the auditors the relevant accounts vouchers bank statements and so on
There were no complaints about the management of the affairs of VESCO or the AECO till the end of 1946 or the beginning of 1947
One significant fact however which occurred prior to 1946 is referred to by the prosecution
Till the year 1945 Messrs C P Rao  Co a firm of Chartered Accountants were the auditors of VESCO but after the respondent No I became Secretary
one B Rajan was elected Auditor not only for VESCO but for all the other four concerns including AECO
This person was Auditor for Greenlands Hotel at Visakhapatnam of which the respondent No I was a Director
RKNG Raju took till towards the end of 1947 and died at Madras in April 1948
According 805 to the prosecution the respondent No I wanted to take advantage of this fact and conceived of a scheme for misappropriating as much money belonging to VESCO as possible before the managing agency agreement of AECO came to an end in October 1948
The respondent No I secured the promotion of the approver KV Ramana who was originally Accounts Clerk to the post of Senior Accountant
Similarly K V Gopala Raju was transferred from the post of Stores Clerk to the general department and KSN Murty the discharged accused was appointed Stores Clerk in his place
Later however Murty was also got transferred to the general section and replaced by P W 18 Srinivasa Rao originally a stores boy
The approver who was originally an Accounts clerk with the AECO was it may be mentioned appointed a cashier in VESCO in 1946 at the instance of the respondent No I and was thus beholden to him
He was later promoted as Senior Accountant and in his place the respondent No 2 Laksbminarayana Rao was appointed the Cashier
According to the prosecution the respondent No I took both the approver and Lakshminarayana Rao in his confidence as also some other persons known and unknown for carrying out his nefarious purpose namely the misappropriation of the funds of VESCO during the subsistence of AECO s managing agency of VESCO
The conspiracy is said to have been hatched in the year 1947 and falsification of accounts and misappropriation of funds of VESCO went on till the end of the accounting year
The term of the managing agency was renewed in 1943 and AECO con tinued to be managing agents until the VESCO was taken over by the Government in 1952
The respondent No I continued to be the Secretary of VESCO and resident representative of the Managing Agents throughout the period of conspiracy
306 After the death of RKNG Raju it was discovered that the AECO was indebted to many concerns which were under its managing agency the liability being shown either as that of AECO or that of RKNG Raju personally
Again the VESCO was shown as indebted to the Andhra Cement to the extent of Rs 42000 
This amount was however paid by the AECO from the funds of VESCO
The respondent No I and some of his friends were in search of a rich and substantial man who would be amenable to them to fill the post of Managing Director of AECO
Eventually their choice fell on G V Subba Raju P W 25 a resident of Manchili who held a large number of shares in the AECO and who was besides related to RKNG Raju by marriage
It is said that this person has not received much education and knows only bow to sign his name in English
He was assured that by consenting to become the Managing Director be would not be required to discharge onerous duties and that the respondent No I would look to all the affairs of VESCO
He was also told that apart from signing important papers which may be sent to him by the respondent No I from time to time to Manchili or wherever be might be would have no work to do
He agreed and was elected Managing Director of AECO in the middle of 1948
Upon this understanding he accepted the position offered to him
The VESCO used to receive large amounts of money from high tension power consumers such as the railways K G Hospital the Port Administration the Andhra University etc by cheques
But domestic consumers usually paid their bills in cash to the bill collectors who used to hand over their collections to the respondent No 2
The respondent No 2 was asked by the respondent No I to maintain a private note book
In that book payments which used to be made by respondent No 2 on the 307 basis of slips issued by the respondent No I which included payments to his relatives or to business firms in which he was personally interested used to be noted and the amount totalled up at the end of the day
This amount was posted in VESCO s Cash Handover Book as  by safe indicating that this amount was kept in the safe though in fact it was not
On the basis of the entries in the Handover Book the final accounts were written up
The respondent No I opened four personal accounts in different banks including the Imperial Bank of India as the State Bank then was
When the respondent No I had to issue a personal cheque on any of these Banks he used to ask the second respondent to send an equivalent amount to the Bank concerned for being credited to his account
These amounts also used to be noted in the private note book and entered by safe  in the Handover Book
Another thing which the respondent No I initiated was opening a heading in the ledger called advance purchase of materials
 Amounts which had been misappropriated used to be posted therein though in fact no orders were placed for any material
It may be mentioned that Subba Raju used to visit Visakhapatnam twice a month and check up the account books
At that time it used to be represented to him that the amounts which were shown to be in the safe and not found therein but which were actually misappropriated had been sent to the Bank for being deposited
Apparently Subba Raju was fully satisfied with this and other explanations and therefore he appointed one C section Raju who was the Manager of Andhra Cements to supervise over the affairs of VESCO
Apparently because of this a new method of misappropriation was adopted by the respondents by starting in the VESCO account books an account called suspense account
A lakh of rupees passed through that account
Amounts which were misappropriated used to find their way in this 308 account
A new cash book was also said to have been prepared by the conspirators with the object of covering up the misappropriations which had been made
Subba Raju was not satisfied with the nature of supervision exercised by C section Raju over the affairs of VESCO because he used to look only at the cash book entries of the days on which he paid visits to VESCO s office to which he used to go with previous intimation
Besides that C section Raju s management of Andhra Cements had landed it into a loss of Rs 30000 
Because of all these things he had C section Raju replaced towards the end of the year 1951 by one Subbaramayya a retired Finance Officer from the Madras Electricity Board both as a Director of Andhra Cements and as a Supervisor over the accounts of VESCO
Subbaramayya took his work seriously and called for information on a number of points from the respondent No 1
He however was unable to obtain any information
In January 1952 he therefore brought one section G Krishna Aiyar who had vast experience in the maintenance of accounts of electrical undertaking s having been Chief Accountant of the South Madras Electric Supply Corporation to undertake an investigation and then to act as Financial Adviser
In the meantime on November 29 1951 there was a meeting of the General Body at which the accounts were among other things to be considered
There was a considerable uproar at that meeting because the respondent No 1 said that the Auditor s report had not been received
The shareholders felt that the report had been received but was being suppressed or deliberately withheld
However the meeting was postponed and eventually held on December 9 1951
On that date the respondent No 1 produced the auditor s report exhibit p 234 of which exhibit P 235 is a printed copy
According to 309 the prosecution the report is a forged document
That was also the feeling of a number of shareholders who wanted to see the original but one Dutt who was Chairman of the meeting after seeing exhibit P 234 said that the report seemed to be a genuine one
section G Krishna Aiyar after his appointment in January 1952 made close enquiry and submitted an interim report
That report showed that during the period 1948 49 Rs 33271 10 0 shown as paid to the Andhra Power System were in fact not paid
The respondent No 1 on being asked to explain said that he would give his explanation to the Managing Director
The Interim Report showed that there was a shortage of about Rs 90000 for this period
On February 12 1952 the respondent No I wrote to the Managing Director admitting his responsibility and agreed to make good the amounts found short or such other amounts as would be found short up to the end of March 1952
Further scrutiny of the accounts was being carried out by Krishna Aiyar and in his subsequent report he pointed out that Rs 238000 which were shown as having been paid to the Andhra Power System had actually not been paid
In fact in April 1952 the Collector attached VESCO properties for realising this amount
On April 30 1952 the respondent No 1 by selling some of his property himself paid Rs 50000 to the Andhra Power System towards the sum due to it from VESCO and had promised to pay the balance shortly thereafter
He was given time for doing so but he failed to pay it
The Directors of VESCO thereafter authorised K section Dutt one of the Directors to lodge a complaint with the police which he accordingly lodged on May 19 1952
On the next day the police placed an armed guard around the office of the respondent No I and seized a number of papers
As a result of investigation they found that there was a total misappropriation 310 of Rs 340000 
On May 13 1954 a chargesheet was filed against the two respondents as well as Murti and the approver Ramana
OD September 13 1954 Ramana offered to make a full Confession to the Additional District Magistrate Independent who was empowered to grant pardon under section 337 of i he Code of Criminal Procedure
He however directed Ramana to make his confession before a SubMagistrate
The latter accordingly made a confession on November 15 1954 and on November 17 1954 the Additional District Magistrate Independent granted him pardon and that is how he came to be examined as a witness in this case
As already stated the Additional Sessions judge convicted both the respondents the respondent No I in respect of each head of the offences with which he was charged and the respondent No 2 in respect only of the offences of conspiracy and misappropriation
The High Court set aside the conviction of the respondents on a number of grounds
In the first place according to the High Court joint trial of two or more persons in respect of different offences cornmitted by each of them is illegal and that here as they were charged with having committed offences under section 120 B section 409 section 477 A and section 476467 IPC they could not be tried jointly
According to it the provisions of section 239 were of no avail
Next according to the High Court even if section 239 is applicable its provisions are subject to those of section 234 and as such the trial being for more than three offences was impermissible
Then according to the High Court offences under
section 409 and section 471467 are of different kinds and are not capable of joint commission
Therefore they could not be jointly tried
Further according to the High Court where a conspiracy has yielded its fruits the conspirators can be charged with the actual offences committed and not with conspiracy to commit those offences
Charge of conspiracy according to the High Court can be validly made 311 only when the prosecution establishes that every conspirator expected to receive a personal benefit from it and that the prosecution has not been able to establish that the respondent No 2 or the approver evidently had any such expectations since they did not in fact receive any corresponding benefit
In so far as the respondent No 2 is concerned the High Court has held that since he was charged with a specific offence under s409 IPC he could not be convicted of mere abetment of an offence
The approver s evidence was held by the High Court to be inadmissible because the pardon granted to him was illegal
The High Court has also held that his evidence is unreliable and further that the Additional Sessions judge was in error in allowing him to refresh his memory by referring to various documents in a manner not permitted by section 159 of the Evidence Act
The High Court has further stated that inadmissible evidence was taken on record by the Additional Sessions judge namely account books of Billimoria Brothers maintained in Gujrati and further that the Additional Sessions judge was in error in allowing the prosecution to use those account books for establishing absence of entries with regard to certain payments alleged in the VESCO books to have been made to them
Finally the High Court held that the examination of the respondent under section 342 of the Code was unfair for a number of reasons and that the Additional Sessions judge had failed to perform an important duty in that he did not call the attention of the respondents to the provisions of section 342 which enable an accused person to give evidence in his own behalf Mr Bhimasankaram appearing for the two respondents however has not sought to support the judgment of the High Court on all these points
The points which he urged are briefly these 1 That there was a misjoinder of charges and persons in that the various provisions 312 of section 239 were clubbed together and an omnibus charge of conspiracy was framed which on its face was one likely to embarrass the respondents and make their task of defending themselves difficult
2 The procedure adopted in the investiga tion and committal stages was irregular
3 Irrelevant evidence was introduced and some evidence was introduced in a manner not authorised by the Evidence Act
4 That the Court abused its powers under s342 Cr
PC while conducting the examination of the respondents
5 The evidence of the approver was inadmissible because the pardon granted to him was illegal that in any case it is unreliable was so found even by the Sessions judge and must therefore be rejected
If the evidence of the approver is left out the remaining evidence would be inadequate to sustain the prosecution case
We shall deal with Mr Bhimasankaram s contentions in the order in which we have set them out
The first question for consideration is whether there was a misjoinder of parties and of persons
The first charge is in respect of the conspiracy alleged to have been entered into by the two respondents K V Ramana the approver and others known and unknown to commit criminal breach of trust of the funds of VESCO and in order to screen its detection to falsify the accounts of VESCO and to use forged documents as genuine
On the face of it this is a valid charge
But certain objections have been taken to it with which we will deal at the 313 appropriate place
The second charge is for an offence of criminal breach of trust punishable under section 409 and the accusation therein is that the two respondents along with Ramana misappropriated 69 items aggregating to a little over Rs 320000 
It is clear from the charge that some of the amounts were misappropriated between April 1947 and March 1950 some between April 1947 and March 1949 some between April 1947 and March 1951 and quite a large number between September 1947 and March 1950 and a still large number between April 1951 and March 1952
It is thus apparent that offences committed within a space of 12 months were tried along with offences committed beyond that period
Unless therefore the provisions of section 239 are applicable it would follow that there was a misjoinder of charges
The third charge is that the two respondents along with the approver Ramana made false entries on seven different dates in the account books between September 19 1947 and March 18 1952 and thus committed an offence under section 477 A IPC The fourth charge is that the two respondents along with the approver Ramana forged six documents on different dates between March 28 1949 and November 12 1951 and thus committed an offence under section 471 read with section 467 IPC As we have pointed out earlier the respondent No I alone was convicted by the Additional Sessions judge in respect of the third and fourth charges
Mr Bhimasankaram supports the reason given by the High Court for coming to the conclusion that there was a misjoinder of charges
The main reasons upon which the conclusion of the High Court is based are firstly that there could be no clubbing together of the provisions of the various clauses of section 239 and secondly that the respondents were charged with more than three offences of the same kind and that this was in contravention of section 239 c
In coming to the conclusion that the 314 provisions of various clauses of section 239 cannot be applied cumulatively the High Court has relied upon the decision in Re Vankavalapati Gopala Rao 1
There the learned judges have held thus These clauses are mutually exclusive and they cannot be simultaneously applied and to construe them as supplementing each other would be enlarging the scope of the exceptions
Each clause is an exception to the general rule enacted in section 233 Cr
If such a combination is permissible all persons accused of offences described in cls
a to g can be tried together in one case which certainly involves a bewildering multiplicity of charges and which would obviously set at naught the salutary principle contained in section 233 p 24 In support of this view the High Court in that case has relied upon the decision in T B Mukherji vs State 2  and referred to the decision in Singarachariar vs Emperor 3 and D K Chandra vs The State
Before considering these decisions it will be useful to look at the scheme of Chapter XIX of the Code of Criminal Procedure which deals with the charge
The chapter is split up into two sub heads  Form of charges and Joinder of charges
 Sections 221 to 232 are comprised under the first sub head and sections 233 to 240 in the second
Sections 221 to 223 deal with the framing and content of charge
section 224 deals with the interpretation of the language of the charge and section 225 with the effect of errors in the charge
Sections 226 to 231 deal with the power of the court with regard to framing and altering charges and the procedure to be adopted at the trial where a charge is found to be defective or there is no charge or where a new charge is to be 1 AIR 1956 Andhra 21
2 AIR 1954 All 501
3 AIR 4 AIR FB 315 framed
Section 232 deals with the power of the appellate court or the High Court when it discovers that there is material error in the charge
Then we come to the other sub head of this chapter
Section 233 provides that for every distinct offence of which any person is accused there shall be a separate charge
It thus lays down the normal rule to be followed in every case
But it also provides that this will be subject to the exceptions contained in SS 234 235 236 and 239
The first three provisions relate to the framing of charges against a single accused person
Section 234 1 deals with the trial of a person for offences of the same kind not exceeding three committed within the space of 12 months from the first to the last of such offences and section 231 2 what is meant by the expression offences of  the same kind 
This provision lifts partially the ban on the trial of a person for more than one offence at the same trial
Section 2351 however goes a step further and permits the trial of a person for more offences than one if they are so connected together as to form the same transaction
Thus under this provision if the connection between the various offences is established the limitations placed by section 2341 both as regards the number and the period during which the offences are alleged to have been committed will not apply
Full effect cannot possibly be given to this provision if we hold that it is subject to the limitation of s2341
Sub section 2 of section 235 deals with a case where an offence falls within two definitions and sub s3 deals with a case in which a number of acts are alleged against an accused person different com binations of which may constitute different offences
Then we come to section 236 which provides that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute the accused may be charged with having committed all or any of such offences and further provides that any number of such 316 charges may be tried together
It also permits that charges could be framed against an accused person in the alternative if the court thinks fit
Thus this is a special provision available in case of doubt and is neither subject to the limitations prescribed by section 233 nor those of the other preceding provisions
Now if the respondent No 1 were alone tried upon the second third and the fourth charges the provisions of section 2351 could have been pressed in aid if the allegations were that the offences were so connected together as to form one and the same transaction and the validity of the trial would not have been open to any attack
Similarly if the second respondent were alone tried on the second charge his trial would not have been open to any objection if the allegation were that the offences were so connected together as to form the same transaction
Here however we have a case where the prosecution alleges that there was additionally a conspiracy to which apart from the two respondents the approver and some other persons were parties and where in both the respondents were tried together
A conspiracy must be regarded as one transaction and there fore a single individual charged with it could be tried with the aid of section 2351 for all the acts committed by him in furtherance or in pursuance of the conspiracy without the limitations imposed by s2341
For where all the acts are referable to the same conspiracy their connection with one another is obvious
The only provision in the Code which permits the joint trial of more than one person is section 239 and what we have to see is whether under that provision the two respondents could have been jointly tried for the offences with which they were charged
Let us therefore examine closely the provisions of 317 section 239
It will be useful to set out the provisions of that section which run thus   The following persons may be charged and tried together namely a persons accused of the same offence committed in the course of the same transaction b persons accused of an offence and per sons accused of abetment or of an attempt to commit such offence e persons accused of more than one offence of the same kind within the meaning of section 234 committed by them jointly within the period of twelve months d persons accused of different offences committed in the course of the same transaction e persons accused of an offence which includes theft extortion or criminal misappropriation and persons accused of receiving or retaining or assisting in the disposal or concealment of property possession of which is alleged to have been transferred by any such offence committed by the first named persons or of abetment of or attempting to commit any such 1st named offence f persons accused of offences under sec tions 411 and 414 of the Indian Penal Code or either of those sections in respect of stolen property the possession 318 of which has been transferred by one offence and g persons accused of any offence under Chapter XII of the Indian Penal Code relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin or of abetment of or attempting to commit any such offence and the provisions contained in the former part of this Chapter shall so far as may be apply to all such charges
 This first thing to be noticed is that section 239 does not read as if its various clauses can be applied only alternatively
On the other hand at the end of cl
f there is a conjunction and 
If the intention of the Legislature was that the provisions of these clauses should be available only alternatively it would have used the word or and not and which has the opposite effect
Grammatically therefore it would appear that the provisions of the various clauses are capable of being applied cumulatively
The opening words of the section show that it is an enabling provision and therefore the Court has a discretion to avail itself cumulatively of two or more clauses
Of course a Court has the power to depart from the grammatical construction if it finds that strict adherence to the grammatical construction will defeat the object the Legislature had in view
The concluding portion of section 239 shows that the provisions contained in the former part of Chapter XIX shall as far as may be apply to the charges framed with the aid of section 239
Does this mean that the provisions of section 233 234 235 and 236 must also be complied with Obviously section 233 does not override the provisions of section 239
Section 234 cannot also be regarded as an 319 overriding provision because reading it that way will lead to the clear result that whereas several accused persons can be charged at the same trial with any number of different offences committed by them in the course of the same transaction they cannot be tried also for offences of the same kind exceeding three in number and committed beyond a space of 12 months from the first to the last
It could not have been the intention of the Legislature to create such a situation
Again as already stated section 2341 does not override the provisions of section 2351 which permits trial of a person for more offences than one committed during any period provided they are so connected together as to form one transaction
Unless we read section 2341 as not enacting a fetter on section 2351 it may not be possible to give full effect to the latter
Now since section 2341 cannot be properly read a overriding section 2351 there is no valid reason for construing it as overriding the provisions of section 239 either
There are also other reasons which point to this conclusion which we will set out while considering the argument advanced by Mr Bhimasankaram
Mr Bhimasankaram contended that s 239 must be read at least subject to sections 2341 and 2351 on the ground that if there are certain restrictions with respect to the trial of a single accused there is no reason why those restrictions will disappear if an accused person is tried along with several other persons
Thus he points out that where several persons are accused of more offences than one of the same kind committed by them jointly within a period of 12 months the number of offences for which they could be tried cannot exceed three
In this connection he relied upon the words within the meaning of section 224 occurring in cl
c of section 239
These words he contended clearly show that cl
c of section 239 is subject to the provisions of section 234
In our opinion the words  within the meaning of section 234 indicate that what was meant by the words offence of the same kind 320 in cl
c of section 239 is the same thing as was meant by the identical expression used in section 2341 and defined in section 2342 and nothing more
If it was the intention of the Legislature to provide that the number of offences for which several accused persons could be tried under cl
c of section 239 should be limited to three as provided in section 2341 the Legislature would either have Said  persons accused of more offences than one of the same kind not exceeding three in number or may have used the words person accused of more than one offence of the same kind to the extent permissible under section 234
Language of this kind would have made perfectly clear that cl
c of section 239 was subject to section 2341
As already stated if section 239c is construed as being subject to section 2341 there would be this anomaly that whereas the same accused person could be charged with and tried jointly for any number of offences of different kinds committed by them for more than three offences of the same kind committed by them jointly there will have to be a separate trial with respect to such offences
Surely such could not have been the intention of the legislature
The object of enacting section 239 was to avoid multiplicity of trials and the only limitation which could properly be placed on the trial of several persons for the same kind of or different offences would be that which considerations of justice and fairness would require
No doubt such a construction would also give rise to the result that whereas so far as the trial of a single accused person is concerned the charges must be limited to three offences committed by him within the space of 12 months from the first to the last of such offences there would be no such limitation when along with that accused person there are one or more persons who have jointly committed those offences
The reason for this possibly is that the Legislature did not want to differentiate between cases where any number of different offences were committed jointly by a group of persons from cases where any number 321 of offences of the same kind were committed by a group of persons
According to Mr Chari section 2351 cannot be construed as having an overriding effect on section 239 because whereas it contemplates acts so connected together as to form the same transaction resulting in more offences than one section 239d contemplates offences committed in the course of the same transaction and nothing more
The question is whether for the purposes of section 239d it is necessary to ascertain any thing more than this that the different offences were committed in the course of the same transaction or whether it must further be ascertained whether the acts are intrinsically connected with one another
Under section 2351 what has to be ascertained is whether the offences arise out of acts so connected together as to form the same transaction but the words so connected together as to form are not repeated after the words  same transaction in section 239
What has to be ascertained then is whether these words are also to be read in all the clauses of section 239 which refer to the same transaction
Section 2351 while pro viding for the joint trial for more than one offence indicates that there must be connection between the acts and the transaction
According to this provision there must thus be a connection between a series of acts before they could be regarded as forming the same transaction
What is meant by same transaction is not defined anywhere in the Code
Indeed it would always be difficult to define precisely what the expression means
Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined
We have not come across a single decision of any Court which has embarked upon the difficult task of defining the expression
But it is generally thought that where there is proximity of time or place or 322 unity of purpose and design or continuity of action in respect of a series of acts it may be possible to infer that they form part of the same transaction
It is however not necessary that every one of these elements should co exist for a transaction to be regarded as the same
But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction
The connection between a series of acts seems to us to be an essential ingredient for those acts to constitute the same transaction and therefore the mere absence of the words so connected together as to from in cl
a c and d of section 239 would make little difference
Now a transaction may consist of an isolated act or may consist of a series of acts
The series of acts which constitute a transaction must of necessity be connected with one another and if some of them stands out independently they would not form part of the same transaction but would constitute a different transaction or transactions
Therefore even if the expression  same transaction alone had been used in section 2351 it would have meant a transaction consisting either of a single act or of a series of connec ted acts
The expression same transaction occurring in cls
a c and d of section 239 as well as that occurring in section 2351 ought to be given the same meaning according to the normal rule of construction of statutes
Looking at the matter in that way it is pointless to inquire further whether the provisions of section 239 are subject to those of section 2361
The provisions of sub section
2 and 3 of section 235 are enabling provisions and quite plainly can have no overriding effect
But it would be open to the court to resort to those provisions even in the case of a joint trial of several persons permissible under section 239
Section 236 is also an enabling provision to be availed of in case of doubt and it is meaningless to say that section 239 is subject to section 236 Bearing in 323 mind the fact that the provisions in the former part of Chapter XIX are applicable to charges made with the aid of section 239 only so far as may be it would not be right to construe section 239 as being subject to the provisions of sections 233 to 236
It was contended by Mr Chari that the expression former part would apply to the first sub division of chapter XIX which deals with the form and content of the charges and the powers of the court with regard to the absence of charge and alteration of charge
We cannot however give the expression such a restricted meaning
For even in the absence of those words the earlier provisions could not have been ignored
For it is a rule of construction that all the provisions of a statute are to be read together and given effect to and that it is therefore the duty of the Court to construe a statute harmoniously
Thus while it is clear that the sections preceding section 239 have no overriding effect on that section the courts are not to ignore them but apply such of them as can be applied without detracting from the provisions of S239
Indeed the very expression so far as may be  empha sises the fact that while the earlier provisions have to be borne in mind by the Court while applying section 239 it is not those provisions but the latter which is to have an overriding effect
Apart from this the question whether the provisions of sections 233 to 236 have or have no overriding effect on section 239 is not strictly germane to the question considered by the High Court that is clubbing together all the provisions of the various clauses of section 239
Whether they can or cannot be read cumulatively must be determined by consideration of the language used in those clauses
We have already indicated how those clauses may be grammatically read
On a plain construction of the provisions of section 239 therefore it is open to the Court to avail itself cumulatively of the provisions of the different clauses of section 239 for the purpose of framing charges 324 and charges so framed by it will not be in violation of the law the provisions of sections 233 234 and 235 notwithstanding
The decision of the Allahabad High Court in T R Mukherji s case IL is directly in point and is clearly to the effect that the different clauses of section 239 are mutually exclusive in the sense that it is not possible to combine the provisions of two or more clauses in any one case and to try jointly several persons partly by applying the provisions of one clause and partly by applying those of another or other clauses
A large number of decisions of the different High Courts and one of the Privy Council have been considered in this case
No doubt as has been rightly pointed out in this case separate trial is the normal rule and joint trial is an exception
But while this principle is easy to appreciate and follow where one person alone is the accused and the interaction or intervention of the acts of more persons than one does not come in it would where the same act is committed by several persons be not only inconvenient but injudicious to try all the several persons separately
This would lead to unnecessary multiplicity of trials involving avoidable inconvenience to the witnesses and avoidable expenditure of public time and money
No corresponding advantage can be gained by the accused persons by following the procedure of separate trials
Where however several offences are alleged to have been committed by several accused persons it may be more reasonable to follow the normal rule of separate trials
But here again if those offences are alleged not to be wholly unconnected but as forming part of the same transaction the only consideration that will justify separate trials would be the embarrassment or difficulty caused to the accused persons in defending themselves
We entirely agree with the High Court that joint trial should be founded on some principle 
But we find it difficult to appreciate what seems to 1 A I R 1954 All
325 be the view of the High Court that because each clause of section 239 enunciates a separate principle those principles are so to speak mutually  exclusive and cannot be cumulatively resorted to for trying several persons jointly in respect of several offences even though they form part of the same transaction
The High Court has propounded that the connection described in each of the various clauses is mutually exclusive that no two of them can exist simulta neously in any case and that one cannot therefore have in any case persons connected with one another in two or more ways
In other words as the High Court puts it persons included in two or more of the groups cannot all be tried together and that since there is absolutely nothing to connect one group with any other the persons of one group cannot be tried with those of any other
No reason has been stated in support of this view
Let us consider whether there is anything intrinsically incompatible in combining two clauses of section 239
Take cls
a and b
Clause a says that persons accused of the same offence committed in the course of the same transaction may be charged and tried together
Clause b says that persons accused of an offence and persons accused of abetment or of an attempt to commit such offence may also be charged and tried together
Now if persons A B and C are tried for an offence of murder what intrinsic difficulty would there be in trying X Y and Z of abetment of the same offence The transaction in which all of them have participated is the same and the abetment by X Y and Z of the offence committed by A B and C would itself establish the connection of their acts with those of X Y and Z Next let us take cls
a and c
Clause c provides that persons accused of more than one offence of the same kind within the meaning of section 234 committed by them jointly within the period of twelve months could also be charged and tried together
Let us consider these clauses along with another illustration
Two persons A and 326 B enter a house at night and first together commit the murder of a man sleeping there and then also his wife
Each of them has committed two offences and each of them participated in the same offence
Why can they not be tried jointly for both murders and why should there be two trials for the two murders  The offences are of the same kind and must be deemed to have been committed in the course of the same transaction because of association and mutual connection
Now supposing in the illustration given A killed the man and B killed his wife
Under cl
c they could be tried together because the offences are of the same kind
It would be ridiculous to say that they cannot be tried together for jointly committing the murder of the man and the wife because cl
a and c cannot be combined
For without combining these two clauses their joint trial for the two offences in each of which both have participated would be impermissible
Then take section a and d
Under cl
d persons accused of different offences committed in the course of the same transaction can be tried together
Let us suppose that a group of persons are accused of having been members of an unlawful assembly the common object of which was to overawe by sheer force another group of persons and take forcible possession of a piece of land
Some of the members of the unlawful assembly carried axes with them while some others carried lathis and attacked the other group
During the course of the attack one person from the second group was killed as a rest of blows with an axe inflicted by the aggressors A B and C Two persons of the second group sustained grievous hurt as a result of lathi blows and one person sustained simple hurt
Let us say that the grievous hurt was caused as a result of lathi blows given by X and Y simple hurt was caused by lathi blows given by Z Here the offences committed were those under sections 147 302 325 and 323 IPC The offences being different and the persons commiting the offences being different they could not 327 be tried jointly only with the help of cl
a of section 239
Nor again could they be tried jointly only with the help of cl
Yet the transaction in which the offences were committed is the same and there is a close association amongst the persons who have committed the different offences
What intrinsic difficulty is there in trying them all together simultaneously availing of cls
a and d of section 239 These are enabling provisions which circumstance implies that the court may avail itself of one or more of these provisions unless doing so would amount to an infringement of any of the provisions of the Code
All these persons can be jointly tried for offences under section 147 by recourse to cl
So also A B and C could be jointly tried together for an offences under section 302
X and Y can be charged not only with offences under sections 147 and 325 I PC but also under section 302 read with section 149
Similarly Z can be charged with offence s under sections 147 323 and offences under section 302 read with section 149 and section 325 read with section 149
The same offence committed by all of them is that under section 147 and all of them can be tried jointly in respect of that offence under cl
Similarly if we take cl
d by itself all of them can be tried jointly for the different offences committed by each of them in the course of the same transaction and if cl
a is unavailable they could not be tried for the offence under section 147 at the same trial
This means that the trial for an offence under section 147 will have to be separated from the trial for the different offences committed by them
It is difficult to appreciate what purpose would be served by separating the trial for the same offence from the trial for different offences
To repeat the object of the legislature in enacting section 239 Cr
PC clearly was to prevent multiplicity of trials and not only would that object be defeated but an extraordinary result will ensue if the various clauses of section 239 are read disjunctively
The reasons given by the Allahabad High Court therefore do not merit acceptance
328 The decision in Singarachariar s Case 1 has really no bearing upon the point before us
What was held there was that sections 235 1 and section 236 are mutually exclusive and if a case is covered by one of them it cannot be covered by the other
In that case the question was whether a person who was first tried for an offence under section 380 IPC for stealing a blank second class railway ticket from the booking office tried for it and acquitted could not be tried subsequently for the offence of forgery by making entries in that ticket and using it
The acquittal in the previous case was urged as a bar under section 4031 of the Code to the trial for an offence under section 467 IPC The contention apparently was that this was a case which fell under section 236 Cr
PC and that if he had been tried alternatively for both the offences at the same trial the Court could have dealt with him under section 237 Cr
The High Court however held that to be a kind of case which fell under section 2351 of the Code and that since that was so the provisions of section 236 were excluded
It is difficult to appreciate how this case assists the conclusion arrived at by the High Court
In DK Chandra s Case 2 it was held that the provisions of sections 234 235 and 236 being exceptions to section 233 must be strictly construed and that if joinder of charges did not fall under any of them it would be illegal and contrary to law
The precise point which we have to consider here did not fall for consideration in that case ie whether the provisions of the various clauses of section 239 could be used together or not
This decision is therefore of little assistance
On the other band there is the decision of this Court in The State of Andhra Pradesh vs Kandinmlla Subbaiah 3 which is to the effect that where several persons had committed offences in the course of the same transactions they could jointly be tried in respect of all those offences under section 239 of the Code of Criminal 1 AIR 1934 Mad 673
C 2 A IR  F B 3 1962 2 section R 194
329 Procedure and the limitation placed by section 234 of the Code could not come into operation
There nine persons were jointly tried for an offence under section 5 1 c and d of the Prevention of Corruption Act 1947 and section 109 I P C read with s  420 section 466 and section 467 I P C and all except one for offences under sections 420 467471 IPC Some of them were also charged with separate offences under some of these provisions
Two of the accused persons preferred a revision application before the High Court of Andhra Pradesh in which they challenged the charges framed against them
The High Court allowed the revision application
But on appeal by the State of Andhra Pradesh to this Court this Court held that there was no misjoinder of charges that the introduction of a large number of charges spread over a long period was a question of propriety and that it should be left to the judge or the Magistrate trying the case to adopt the course which he thought to be appropriate in the facts and circumstances of the case
In so far as some of the charges were concerned this Court pointed out that the Special judge who was to try the case should consider splitting them up so that the accused persons would not be prejudiced in answering the charges and defending themselves
It is true that the question of reading the various clauses cumulatively did not specifically arise for decision in that case but the High Court had held that the first charge was an omnibus charge containing as many as 203 offences and that it was in direct violation of sections 234 235 and 239 of the Code of Criminal Procedure
Dealing with this matter this Court held at p 200  No doubt sub section
1 of section 234 provides that not more than three offences 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 235 1 provides that if in any one series of acts so connected together 330 as to form the same transaction more offences 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 offences have been committed in the course of the same transaction the limitation placed by section 234 1 cannot operate
No doubt the offence mentioned in charge No I 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 offences
To this kind of charges
239 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 abetment or an attempt to commit such an offence 3 persons accused of different offences committed in the course of the same transaction
Clearly therefore all the accused persons could be tried together in respect of all the offences now comprised in charge No 1
This Court has thus clearly read the provisions of the various clauses cumulatively and we see no reason to read them differently
There remains the decision of this Court in KV Krishna Murthy Iyer vs The State of Madras IN on which Mr Bhimasankaram strongly relied
In that case this Court upheld the order of the High Court of Madras in quashing the charges in the exercise 1 A I R 1954 s a 406 331 of its inherent powers even before the conclusion of the trial
It is true that there the charges were 67 in number and spread over a long period of time
That again was a matter which came before the High Court before conviction and not after the trial was over
When an objection is taken at an early stage there is time enough to rectify an error
But in the case before us no objection was taken to multiplicity or misjoinder of charges before the learned Additional Sessions judge and it was only in the High Court that the point was raised In such circumstances what the Court has to consider is whether prejudice has in fact been caused to the accused by reason of the multiplicity of charges or misjoinder if any of the charges
This is quite clear from the provisions of section 537 of the Code as amended by Act 26 of 1955
In Willie William Slaney vs The State of Madhya Pradesh 1 all the learned judges were in agreement on the point that this section and section 535 cover every case in which there is departure from the rules set out in Ch
XIX ranging from error omissions and irregularities in charges that are framed down to charges that might have been framed and were not and include a total omission to frame a charge at all at any stage of the trial
The whole question has again been examined by this Court recently in Birichh Bhuian vs The State of Bihar 2
Subba Rao J who delivered the judgment of the Court has stated the position thus To summarise a charge is a precise formula tion of a specific accusation made against a person of an offence alleged to have been com mitted by him
Sections 234 to 239 permit the joinder of such charges under specified condi tions for the purpose of a single trial
Such a joinder may be of charges in respect of different offences committed by a single person or several persons
If the joinder of charges was contrary to the provisions of the Code it would 1 1955 2 section Co R 1140 2 1963 Supp
2SCR 328 332 be a misjoinder of charges
Section 537 prohibits the revisional or the appellate court from setting aside a finding sentence or order passed by a court of competent jurisdiction on the ground of such a misjoinder unless it has occasioned a failure of justice
 Even if we were to assume that there has been a misjoinder of charges in violation of the provisions of sections 233 to 239 of the Code the High Court was incompetent to set aside the conviction of the respondents without coming to the definite conclusion that misjoinder had occasioned failure of justice
This decision completely meets the argument based upon Dawson s Case 1
Merely because the accused persons are charged with a large number of offences and convicted at the trial the conviction cannot be set aside by the appellate court unless it in fact came to the conclusion that the accused persons were embarrassed in their defence with the result that there was a failure of injustice
For all these reasons we cannot accept the argument of learned counsel on the ground of misjoinder of charges and multiplicity of charges
Mr Bhimasankaram supporting the view taken by the High Court then contends that it is not permissible to frame a charge of conspiracy when the matter has proceeded beyond the stage of conspiracy and that in pursuance of it offences have actually been committed
A similar view was expressed by the same High Court in the case which was reversed by this Court in The State of Andhra Pradesh V Kandinalla Subbaiah 2 and it was held that conspiracy to commit an offence being itself an offence a person can be separately charged with respect to such a conspiracy
Then this Court has observed  Where a number of offences are committed by several persons in pursuance of a conspiracy it is usual to charge them with those 1 19601 All E R 558 2  333 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 Swamirathnam 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 High Court of Andhra Pradesh this Court did not see any thing wrong in the trial of several persons accused of offences under section 120 B and s420
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 have 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 pp
201 202
This decision is sufficient to dispose of the point under consideration
In Swamirathnam s case 1 which is a decision of this Court certain persons were tried for the offence of the conspiracy to cheat the members of the public and for specific offences of cheating in pursuance of that conspiracy
It was urged before this Court that there was misjoinder of charges and persons Negativing the contention this Court held that the charge as framed disclosed a single conspiracy although spread over several years that there was one object of the conspiracy and that was to cheat the members of the public that the fact that in the course of years other joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy did not have the effect of splitting the conspiracy into several conspiracies
that the several instances of cheating being alleged to be in pursuance of that conspiracy were parts of the same transaction and therefore the joint trial of the accused 1 A I R  343 344
334 persons for the different offences was not vitiated
No doubt there is no discussion there as to the question whether the various clauses of section 239 could be combined or as to the impact of the provisions of section 233 to 236 on those of section 239
The actual decision of the case is however directly opposed to the contention now put forward before us
This decision has been followed in Natwarlal Sakarlal Mody vs The State of Bombay 1
In that case the impact of section 120 B IPC on sections 233 and 239 of the Code of Criminal Procedure was considered by this Court and this Court observed The combined effect of the three provisions sections 235 236 and 239 is that if there is a criminal conspiracy to commit different offences the persons who are members of that conspiracy may be charged and tried together but the necessary condition for invoking the provisions of section 239 d is that the offence should have been committed in the course of one transaction ie in the present case one and the same conspiracy
 Here again the question of clubbing together of the various provisions of cls
a to d of section 239 was not raised expressly in the argument before the Court
But the ultimate decision of the case would negative such argument
Mr Bhimasankaram then relying upon the decision in R vs Dawson 2 contended that in any event it was not desirable to try the respondents at the same trial for as many as 83 offences and pointed out that these observations had received the approval of this Court in The State of Andhra Pradesh vs Kandimalla Subbaiah 3
In the first place there the trial had not actually begun
Again what was said by this Court was that it is undesirable to complicate a trial by introducing a large number of charges 1 Crl
A No III of 1959 decided on January 19 1961
2  3 335 spread over a long period but even so this was a question of propriety which should be left to the discretion of the judge or Magistrate trying the case
Objection was taken very seriously by Mr Bhimasankaram to the charge of conspiracy framed in this case
That charge reads thus  That both of you along with KV Ramana exhibit Senior Accountant of the Vizagapatam Electric Supply Corporation Ltd Visakhapatnam approver and others known or unknown in or about April 1 1947 at Visakhapatnam agreed to do illegal acts to wit commit criminal breach of trust in respect of the funds belonging to the Vizagapatam Electric Supply Corporation Ltd Vizagapatnam and to screen yourselves from detection of the same to wilfully and with intent to defraud falsify the accounts of the said Vizagapatam Electric Supply Corporation Ltd Visakhapatnam and that pursuant to the said agreement you committed criminal breach of trust in respect of funds of the said Vizagapatam Electric Supply Corporation Ltd Visakhapatnam to the extent of over Rs 320000 and falsified the said accounts between April 1947 and March 1952 and also used forged documents as genuine offences punishable under Sections 409 Indian Penal Code and 477 A Indian Penal Code and 471 read with section 467 Indian Penal Code  and thereby committed an offence of criminal conspiracy punishable under Section 120 B of the Indian Penal Code and within my cognizance
 Adverting to the portion which we have bracketed his first objection was that the charge comprises within it not merely the conspiracy but also what 336 was in fact done in pursuance of the conspiracy
His next objection was that it brought within its purview all the various offences which were alleged to have been committed by the respondents
The third objection was that no charge of conspiracy could have been framed after the conspiracy had borne its fruits
The last objection was that the charge of conspiracy was added to the charge sheet very late
We shall first deal with the third point
The offence of conspiracy is an entirely independent offence and though other offences are committed in pursuance of the conspiracy the liability of the conspirators for the conspiracy itself cannot disappear
In the Indian Penal Code as originally enacted conspiracy was not an offence
Section 120 B which makes criminal conspiracy punishable was added by the Indian Criminal Law Amendment Act 1913 8 of 1913 along with section 120 A Section 120 A defines conspiracy and section 120 B provides for the punishment for the offence of conspiracy
Criminal conspiracy as defined in section 120 A and consists of an agreement to do an illegal act or an agreement to do an act which is not illegal by illegal means
Section 120 B provides that whoever is a party to a criminal conspiracy to commit an offence punishable with death imprisonment for life or rigorous imprisonment for a term of two years or upwards shall be punishable in the same manner as if he has abetted such offence unless there was an express provision in the Code for the punishment of such conspiracy
Criminal conspiracy was however not an unknown thing before the amendment of the Indian Penal Code in 1913
But what the amendment did was to make that conspiracy itself punishable
The idea was to prevent the commission of crimes by so to speak nipping them in the bud
But it does not follow that where crimes have been committed the liability to punishment already incurred 337 under section 120 B by having entered into a criminal conspiracy is thereby wiped away
No doubt as already stated where offences for committing which a conspiracy was entered into have actually been committed it may not in the particular circumstances of a case be desirable to charge the offender both with the conspiracy and the offences committed in pursuance of that conspiracy
But that would be a matter ultimately within the discretion of the court before which the trial takes place
In so far as the fourth point is concerned that would have a bearing not on the form of the charge but on the credibility of the evidence bearing on the point of conspiracy
As we are remanding the appeal to the High Court for a fresh decision after full consideration of the evidence adduced in the case it would be open to it to consider this matter particularly while judging the credibility of the evidence of the approver
In so far as the portion included in the bracket is concerned we agree with the learned counsel that it should not have found place there
The ideas however of the committing magistrate in stating all that is said there appears to have been merely to describe the conspiracy and do nothing more
We do not think that either that or the other objection raised that is that the charge embraces within it all the offences said to have been committed by the respondents can properly
be said to vitiate the charge
The object in saying what has been set out in the first charge was only to give notice to the respondents as to the ambit of the conspiracy to which they will have to answer and nothing more
Even assuming for a moment that this charge is cumbersome in the absence of any objection by the respondents at the proper time and in the absence of any material from which we could infer prejudice they are precluded by the provisions of section 225 from complaining about it at any rate after their conviction by the trial court
338 Coming to the next point of Mr Bhimsankaram regarding the abuse of powers under section 342 his first contention was that long and involved questions were put to the respondents
His second contention was that reference was made to a number of documents in some of these questions and those documents were not made available to the respondents for answering those questions
The third contention was that the questions were involved confusing and bordered on cross examination
Finally he said that the court did not perform its duty under section 342 4 of the Code as amended as it failed to bring to the notice of the respondents that they may if they chose give evidence in their defence
In support of his first contention he referred to questions Nos 4 8 9 10 and 20 put to the respondent No I and question No 12 put to the respondent No 2 and tried to show that those questions rolled up a large number of separate questions and that it could not have been possible for the respondents to give any rational answers to those questions
We have read the questions and so also the answers
While we are disposed to agree with learned counsel that the questions embrace a number of matters and that it would have been better if those matters had been made the subjects of separate questions the answers given by the respondents clearly show that they understood the questions and wherever possible they have given complete answers to those questions
That is to say they have given their explantion regarding the circumstances appearing in the evidence set out in the questions and wherever that was not feasible they have said that they would do so in their written statements
In fact written statements have been filed by each of them in which every point left over has been fully answered
We are informed that the questions had been prepared before hand by the learned Additional Sessions judge copies thereof were made available to 339 each of the respondents and it was with reference to those copies that they gave their answers in the court
A pointed reference was made to question No 20 put to respondent No I which contains as many as 22 sub heads and it is said that it was an extremely unfair and embarrassing question
What the learned Additional Sessions judge has done is to err on the side of over cautiousness by putting every circumstance appearing in the evidence to the respondents for eliciting their explanations
His object was to obviate the possibility of a complaint before the appellate court that they were denied the opportunity of explaining the circumstances appearing in evidence against them because of defective questions
Nor again do we think that there is any substance in the complaint made that the respondents had no opportunity of referring to the documents to which reference has been made in certain questions
No objection was taken on their behalf before the learned Additional Sessions judge and from the manner in which they have answered the questions there is no doubt that they must have had opportunity to look at the relevant documents and answer the questions
We are also satisfied that there is no substance in the complaint that the questioning bordered on cross examination
Undoubtedly the learned Additional Sessions judge has questioned the respondents very fully and elaborately but to say that this bordered on cross examination is wholly unjustifiable
The object of the learned Additional Sessions Judge quite clearly was as already stated to leave no loophole for a complaint to be made before the appellate court of incomplete or insufficient examination under section 342
Finally we are clear that it was not the duty of the court to draw the pointed attention of the respondents to the provisions of sub section
4 of section 342 and tell them that they may if they chose enter the witness box
It is true that by introducing this provision 340 the disability placed on an accused person in respect of giving evidence on oath in his own defence has been removed and to that extent such person is placed on par with an accused person under the English law
The new provision however does no more than lift the ban and does not impose a duty on the court to draw the attention of an accused person to its contents
Apart from that the respondents were represented by counsel at the trial who knew very well what the law was
No complaint was made by the respondents even in appeal that they were ignorant of their right that had they known about it they would have given evidence on oath in their defence and that because of this they have been prejudiced
In the circumstances this point must also be rejected as being without substance
The irrelevant evidence to which Mr Bhimasankaram referred was certain account books
The entries in the
account books of VESCO show that certain sums of money were paid to various parties Crompton Engineering Co Lumin Electric Co D Brothers Radio and Electrical Madras Vizagapatam Municipality P V Ramanayya Bros and Andhra Power System
They also show payment case was that the payments which were entered in the account of VESCO do not find a place in the account books of the corresponding firms or authorities because they were never made by VESCO
The High Court has pointed out that the main evidence on which the prosecution rests its case that the amount represented by the entries against these various firms were in
fact misappropriated by the respondents in the circumstance that there are no corresponding entries in the account books of those firms
The argument before the High Court was and before us is that the absence of an entry cannot of electricity duty to Government
The prosecution 341 be established by reference to section 34 of the Indian Evidence Act which reads thus Entries in books of account regularly kept in the course of business are relevant whenever they refer to a matter into which the Court has to inquire but such statements shall not alone be sufficient evidence to charge any person with liability This section appears in a group of sections headed Statements made under special circumstances
What it does is to make entries in books of account regularly kept in the course of business relevant in all proceedings in a court of law
These entries are however not by themselves sufficient to charge any person with liability
Therefore when A sues B for a sum of money it is open to him to put his account books  in evidence provided they are regularly kept in the course of business and show by reference to them that the amount claimed by him is debited against B The entry though made by A in his own account books and though it is in his own favour is a piece of evidence which the court may take into consideration for the purpose of determining whether the amount referred to therein was in fact paid by A to B The entry by itself is of no help to A in his claim against B but it can be considered by the court along with the evidence of A for drawing the conclusion that the amount was paid by A to B
To this limited extent entries in the account books are relevant and can be proved
Section 34 does not go beyond that
It says nothing about non existence of entries in account books
We therefore agree with the High Court that the account books of the various concerns to whom payments are said to have been made by the respondents are not by themselves evidence of the fact that no payments were received by them
The decision in Queen Empress vs Grees Chunder Banerjee 1 upon which reliance 1 Cal
342 is placed by the High Court in support of its view is also to that effect
Similarly in Ram prashad Singh vs Lakhpati Koer 1
Lord Robertson during the course of the hearing has observed that no inference can be drawn from the absence of any entry relating to any particular matter which observation supports the view taken in Queen Empress vs Girish Chander Banerjee 2
That however is not the only provision to be considered
There is section II of the Evidence Act which provides that facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact
Some of the facts in issue in this case are whether payments of certain sums of money were made to Crompton Engineering Co and other firms or authorities
These are relevant facts
Absence of entries in their account books would be inconsistent with the receipt of the accounts and would thus be a relevant fact which can be proved under section 11
The fact that no payments were received by those firms has been deposed to by persons connected with those firms and whose duty it was to receive and acknowledge amounts received by the firms or who were in charge of the accounts of these firms
For the purpose of showing that no amounts were received by the firms their account books would thus be as relevant as the VESCO account books for the purpose of showing the contrary
Similarly there is section 5 of the Evidence Act which reads thus Evidence may be given in any suit or procee ding of the existence or non existence of every fact in issue and of such other facts as are hereinafter declared to be relevant and of no others
 It is the case of the prosecution that the alleged payments were never made by VESCO to the various firms
It is also their case that these firms maintain their accounts in the regular course of business and it is their practice to enter in those accounts all payments received by them
Both the sets of facts are 1 Cal
231 247
2 CL 1024
343 relevant that is non receipt of the amounts by the firms and non existence of entries in their account books pertaining to those amounts
It is permissible therefore for the prosecution to lead evidence to Drove both these facts
The best evidence to prove the latter set of facts consists of the account books of the firms themselves
It is under these provisions that the account books of the firms must be held to be relevant
What value to attach to them is another matter and would be for the Court of fact to consider
It may further be mentioned that the account books of VESCO show certain payments made to Billimoria  Co of Kharagpur
Papers seized by the police include receipts purporting to have been signed by one J J Billimoria on behalf of the firm
The prosecution case is that these receipts are forged documents and the entries in the account books of VESCO are false
One of the partners of the firm was examined by the prosecution as a witness in the case and he produced the account books of the firm
Those account books are in Gujrati and he stated in his evidence that the accounts were regularly kept and that there were no entries in them corresponding to the entries in the VESCO accounts
The High Court held that since the account books were not translated they are not admissible in evidence
The High Court was clearly wrong in so holding
In coming to this conclusion it has relied upon the provisions of section 356 2A of the Code of Criminal Procedure
That section reads thus When the evidence of such witness is given in any other language not being English than the language of the Court the Magistrate or Sessions judge may take it down in that language with his own hand or cause it to be taken down in that language in his presence and hearing and under his personal direction and superintendence and an authenticated translation of 344 such evidence in the language of the Court or in English shall form part of the record This provision relates only to the oral evidence adduced in a case and not to documentary evidence
Mr Bhimasankaram therefore very rightly did not support the view of the High Court
In the circumstances we wish to say nothing further on the point
We may however point out that Billimoria himself gave his evidence in English
Another point urged by Mr Bhimasankaram was that as many as 2000 documents were dumped by the prosecution in this case out of which 1600 documents were not sought to be proved by it
Further 64 documents were missing from the records when they came to the High Court and that this has caused serious prejudice to the respondent
No objection however was taken in the courts below on this score and in the absence of any prejudice to the respondents we do not think that we should take notice of the complaint made by Mr Bhimasankaram
The third point stressed by him was that the approver was allowed to refresh his memory while deposing in the case by referring extensively to the account books and various documents produced in the case
This according to him was an absue of the provisions of section 159 of the Evidence Act
Now section 159 expressly enables a witness while under examination to refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is being questioned or soon afterwards or to a writing made similarly by another person and read by the witness immediately or soon after the writing was made
Section 160 provides that a witness may also testify to the facts mentioned in any such document as is mentioned in section 159
The complaint of Mr Bhimasankaram is that the approver should have been questioned 345 about the various facts which were sought to be established through his evidence and it was only if and when he was in a difficulty that he should have been allowed to refer to the account books
Instead of doing that what he was permitted to do was just to prove the various documents or read those documents and then depose with reference to them
In our opinion where a witness has to depose to a large number of transactions  and those transactions referred to are or mentioned either in the account books or in other documents there is nothing wrong in allowing the witness to refer to the account books and the documents while answering the questions put to him in his examination
He cannot be expected to remember every transaction in all its details and section 160 specifically permits a witness to testify the facts mentioned in the documents referred to in section 159 although he has no recollection of the facts themselves if he is sure that the facts were correctly recorded in the document
That is precisely what happened in this case and we do not think that the Additional Sessions judge adopted a procedure which was either a violation of law or was an abuse of the power of the Court
The next point is a formidable one
According to Mr Bhimasankaram the pardon tendered to the approver was illegal and if the pardon is illegal his evidence is wholly inadmissible
Further according to him the evidence of the approver was found by the Additional Sessions judge to be unreliable and therefore the first condition referred to in Sarwan Singh vs The State of Punjab 1 was not satisfied
For all these reasons the evidence of the approver must be left out of account
If it is left out of account he contends there is nothing left in the prose cution case because as pointed out by the Additional Sessions judge himself the evidence of the approver is the pivot of the prosecution case
1  346 The pardon is stated to be illegal for two reasons
The first reason is that none of the offences alleged to have been committed falls within section 337 of the Code of Criminal Procedure and the second reason is that the pardon was granted by an authority not empowered to grant it
Section 337 1 as it stood before its amendment by Act 26 of 1955 read thus In the case of any offence triable exclusively by the High Court or Court of Session or any offence punishable with imprisonment which may extend to ten years or any offence punishable under section 211 of the Indian Penal Code with imprisonment which may extend to seven years or any offence under any of the following sections of the Indian Penal Code namely sections 161 165 165A 216A 369 401 431 435 and 477 A the District Magistrate a Presidency Magistrate a sub divisional Magistrate or any Magistrate of the first class may at any stage of the investigation or inquiry into or the trial of the offence with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowlege relative to the offence and to every other person concerned whether as principal or abettor in the commission thereof  Provided that where the offence is under inquiry or trial no Magistrate of the first class other than the District Magistrate shall exercise the power hereby conferred unless he is the Magistrate making the inquiry or holding the trial and where the offence is under investigation no such Magistrate shall 347 exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inquired into or tried and the sanction of the District Magistrate has been obtained to the exercise thereof His contention is that where none of the offences is exclusively triable by the High Court or the Court of Sessions pardon could be granted only if the offences are punishable with imprisonment which could extend to ten years but not if a higher punishment were provided for them
Here one of the offences alleged against the respondents is criminal breach of trust punishable under section 409 IPC It is not exclusively triable by a Court of Sessions and the punishment as set out in the 7th column of Schedule II Cr P C was transportation for life or imprisonment of either description for ten years and fine
He contends that since the offence is punishable with transportation for life section 337 1 could not be availed of for granting pardon to the approver
It seems to us that it would not be correct to read section 337 1 in the way sought by learned counsel
The very object of this provision is to allow pardon to be tendered in cases where a grave offence is alleged to have been committed by several persons so that with the aid of the evidence of the person pardoned the offence could be brought home to the rest
The gravity is of course to be determined with reference to the sentence awardable with respect to that offence
On the strength of these considerations Mr Chari for the State contends that if the words any offence punishable with imprisonment which may extend to 10 years were interpreted to mean offences which were punishable with imprinsonment of less than 10 years grave offences which are not exclusively triable by a court of Sessions will be completely out of section 337 1
He suggests that this provision can also be reasonably 348 interpreted to mean that where the offences are punishable with imprisonment exceeding 10 years pardon may be granted to the approver
No doubt if this interpretation is accepted the object of the section that is to embrace within it the graver offences would be fulfilled but we wish to express no opinion on it
For the pardon granted in this case can be regarded as being within the ambit of section 337 1 for another reason
It will be noticed that transportation for life was not the only punishment provided for an offence under section 409 of the Indian Penal Code even before the amendment made to the Indian Penal Code by section 117 of the Act 26 of 1955 the other alternative being imprisonment up to 10 years
Therefore since the offence under section 409 was not merely punishable with transportation for life but alternately also punishable with imprisonment which could extend to 10 years section 337 1 would apply
This section does not expressly say that the only punishment provided for the offence should be imprisonment not exceeding 10 years
The reason why two alternative maximum sentences are given in col 7 that is transportation for life now imprisonment for life and imprisonment not exceeding 10 years appears to be that the offence is not exclusively triable by a court of session and could also be tried by a Magistrate who except when empowered under section 30 would be incompetent to try offences punishable with transportation for life now imprisonment for life and the further reason that it should be open to the court of Session instead of awarding the sentence of transportation for life to a convicted person to award him imprisonment in a jail in India itself for a period not execeeding 10 years
Now of course by the amendment made by section 117 of Act 26 of 1955 for the words transportation for life the words imprisonment for life have been substituted but the original structure of all the sections now amended continues
That is why they read rather queer but even so they serve the purpose 349 of allowing certain offences triable by a court of Session to be triable also by Magistrates of the First Class
Be that as it may there is no substance in the first ground
What we have said about pardon in respect of an offence under section 409 would apply equally to that for one under section 120 B because the punishment for it is the same as that for the offence under section 409
The offence under section 467 read with section 471 is punishable with imprisonment for life or imprisonment of either description for a period of 10 years but it is exclusively triable by a court of Session and therefore in so far as such offence is concerned the argument of Mr Bhimasankaram would not even have been available
As regards the offence under section 477 A it is one of those sections which are specifically enumerated in section 337 1 and the argument advanced before us and which we have rejected would not even be available with regard to the pardon in respect of that offence
It is true that the respondent No I alone was convicted by the Additional Sessions judge of this offence and the offence under section 467 read with section 471 but the validity of a pardon is to be determined with reference to the offence alleged against the approver alone and not with reference to the offence or offences for which his associates were ultimately convicted
Coming to the next ground of attack on the validity of pardon the argument of Mr Bhimasankaram is that whereas section 337 1 speaks of pardon being granted by a District Magistrate or Presidency Magistrate a Sub Divisional Magistrate or any Magistrate of First Class except in cases where an enquiry or trial was pending before another Magis tratc the pardon here was granted by the Additional District Magistrate in a case where an enquiry was pending before the District Magistrate and is therefore illegal and of no avail
He contends that 350 section 337 1 speaks of the District Magistrate which expression does not include an Additional District Magistrate
Mr Bhimasankaram s argument on the point may be summarised thus  Such a power cannot be conferred upon an Additional District Magistrate because section 337 1 does not contemplate grant of pardon by an Additional District Magistrate and that the Additional District Magistrate would have no status other than that of a Magistrate First Class
No doubt under entry 9 a in Part III of Sch
III to the Code a Magistrate First Class has the power to grant pardon under section 337 but it is limited by the proviso thereto to certain classes of cases
A case under enquiry or trial before another magistrate does not fall in any of these classes
Therefore a pardon granted by him in such a case would be illegal
The Magistrate before whom the enquiry or trial is proceeding or the District Magistrate would be the only authorities competent to grant a pardon in such a case
Alternatively the State Government has not made any directions under sub section
2 of section 10 specifying the powers of the District Magistrate which would lie exercisable by the Additional District Magistrate concerned
In order to appreciate and consider the argument it is desirable to bear in mind the changes in the magisterial set up in the former province of Madras which comprised within it the district of Visakhapatnam
By Government Order No 3106 dated September 9 1949 the Government of the Province of Madras issued certain instructions to the Magistrates in pursuance of the separation of the judiciary from the executive
It divided the magistrates into two groups Judicial magistrates and executive magistrates
The latter category comprises of the executive officers of the Revenue Department on whom the responsibility for the maintenance of law and order was to continue to rest
 Para 4 of the instructions provides 351   
To enable them to discharge this respon sibility these officers will continue to be magistrates
The Collector by virtue of office will retain some of the powers of a District Magistrate and will be called the Additional District Magistrate
To distinguish him from his Personal Assistant he may be called Additional District Magistrate Independent 
He will continue to be the Head of the Police
Similarly the Revenue Divisional Officers will be exofficio First Class Magistrates and the Tahsildars and the Deputy Tahsildars will be ex officio Second Class Magistrates
The extent of their magisterial powers will be as indicated in the Schedule of allocation of powers
They will exercise these powers within their respective revenue jurisdictions
 Para 5 provides that as officers of the Revenue Department those magistrates would be under the control of the Government through the Board of Revenue
The Additional District Magistrates Independent would also be under the control of the Government through the Board of Revenue
The category of judicial Magistrates was constituted of the following 1 District Magistrate 2 Sub divisional Magistrates 3 Additional First Class Magistrates and 4 Second Class Magistrates Sub magistrates
The District Magistrate was constituted as the principal magistrate of the District and as such was entrusted with the duty of general administration and superintendence and control over the other judicial magis trates in the district
In addition to his general supervisory functions and the special powers under the Code of hearing revision petitions transfer petitions appeals from Second Class Magistrates and the like the District Magistrate was also to be assigned a specific area the cases arising from which would be disposed of normally by himself
This body of magistrates was made subordinate to the High Court
Till the separation between the judiciary and the executive was effected the Collector as the head of the Revenue Department was also the 352 District Magistrate
Consequent on the separation he became only an Additional District Magistrate
Part IV of the Government order deals with the allocation of powers between the judicial and executive magistrates
Para 193 occurring in this part deals with allocation of powers under the provisions of the Code otherwise than these referred to in the earlier paragraphs
It specifically provides that the power to tender pardon udder section 337 shall be exercised by executive magistrates except in cases referred to in the proviso to sub section
1 of that section in which case a judicial magistrate may exercise that power
In spite of the Government order all Magistrates who have under Sch
III to the Code of Criminal procedure the power to grant pardon will continue to have that power and therefore a pardon granted by a judicial Magistrate in contravention of the Government order will not be rendered invalid
However that is not the point which is relevant while considering the argument of Mr Bhimasankaram
His point is that the proviso to section 3371 confers the power on the District Magistrate to grant pardon in a case pending before another Magistrate and not on a District Magistrate and therefore his power to grant pardon in such cases cannot be conferred under sub s2 of section 10 on an Additional District Magistrate
According to him under that section only the powers of a District Magistrate meaning thereby only the powers under Entry 7 a in Part V of Sch
III as distinguished from the power under the proviso to section 337 1 can be conferred upon an Additional District Magistrate
Secondly according to him no direction has in fact been shown to have been made by the State Government conferring upon an Additional District Magistrate the power of the District Magistrate to grant pardon
In our opinion there is no subtance in the contention
The power conferred by sub section
1 of section 337 on the different clauses of Magistrates is of the same character
353 The power to grant pardon in a case pending before another Magistrate is no doubt conferred by the proviso only on the District Magistrate
But Entry 7 a in Part V of Sch
III when it refers to the power of a District Magistrate under section 337 1 does not exclude the power under the proviso
There is therefore no warrant for drawing a distinction between the powers of the District Magistrate and the powers of  a District Magistrate The power of a District Magistrate to grant Pardon has been specifically conferred on Additional District Magistrates as would appear from section No 37 of Sch
III of the Government Order which reads thus  SI
Concurrent No magis magis jurisdic trate trate tion 37 3371 2nd paragraph proviso Remarks Reference to the District Magistrate in the proviso should be construed as reference to the Executive District Magistrate
Reference to the Magistrate making the enquiry or holding the trial etc should be construed as a reference to the judicial Magistrate
 No doubt here the reference is to the Executive District Magistrate
But it is clear from the other part of the Government Order that what is meant by that is the Additional District Magistrate Independent
This was and we are told is being regarded as a direction of the Government falling under subs
2 of section 10 of the Code
Whether the interpretation is correct or not we feel little doubt that the 354 action of the Additional District Magistrate Independent Visakhapatnam in granting a pardon to the approver in this case though it was pending enquiry before the District Magistrate judicial was bona fide
A pardon granted bona fide is fully protected by the provisions of section 529 Cr P C The High Court has not considered any of the provisions to which we have referred but held that as the offence was being equired into by the District Magistratethe Additional District Magistrate could not usurp the functions of the former and grant a pardon
Had it done so it would not have come to this conclusion
We are therefore unable to accept it
Mr Chari for the State advanced a further argument before us in case his main argument that the pardon was valid failed and said that the approver even if we ignore the pardon was a competent witness
In support of his contention he strongly relied upon the decision in Kandaswamy Gounder In re  the appellant 1 and the cases referred to therein in particular the decision in Winson vs Queen 2
What has been held in all these cases is that where the trial of a person who was charged with having committed an offence or offences jointly with several persons is separated from the trial of those persons he would be a competent witness against them though of course there will always be the question as to what weight should be attached to his evidence
Mr Chari then referred to section 133 of the Evidence Act and pointed out that this section clearly makes an accomplice evidence admissible in a case and that an approver whose pardon is found to be invalid does not cease to be an accomplice and contends that he is therefore as competent a witness as he would have been if he had not been granted pardon at all and not been put on trial
Learned counsel further pointed out that the decisions show 1 ILR  2 1866 LR
I QB 355 that however undesirable it may be to adduce the evidence of a person jointly accused of having committed an offence along with others his evidence is competent and admissible except when it is given in a case in which he is being actually tried
This legal position does not according to him offend the guarantee against testimonial compulsion and he points out that that is the reason why an accused person is not to be administered an oath when the court examines him under section 342 1 for enabling him to explain the circumstances appearing in evidence against him
If pardon is tendered to an accused person and eventually it is found that the pardon is illegal such person is pushed back into the rank of an accused person and being no more than an accomplice would be a competent witness
The question raised is an important one and requires a serious consideration
Mr Chari in support of his contention has cited a large number of cases Indian as well as English and certain passages from Halsbury s Laws of England
But in the view we take about the legal validity of the pardon tendered we do not wish to pronounce one way or the other on this very interesting question
Now as regards the reliability of the approver
It is no doubt true that an approver has always been regarded as an infamous witness who on his own showing has participated in a crime or crimes and later to save his own skin turned against his former associates and agreed to give evidence against them in the hope that he will be pardoned for the offence committed by him
The High Court seems to think that before reliance could be placed upon the evidence of the approver it must appear that he is a penitent witness
That in our opinion is not the correct legal position
The section itself shows that the motivating factor for an approver to turn what in England is called King s evidence is the hope of pardon and not any noble sentiment like contrition 356 at the evil in which he has participated
Whether the evidence of the approver should in any given case be accepted or not will have to be determined by applying the usual tests such as the probability of the truth of what he has deposed to the circumstances in which he has come to give evidence whether he has made a full and complete disclosure whether his evidence is merely self exculpatory and so on and so forth
The court has in addition to ascertain whether his evidence has been corroborated sufficiently in material particulars
What is necessary to consider is whether applying all these tests we should act upon the evidence of the approver should be acted upon
We however find that certain documents upon which Mr Chari wants to rely are not included in the paper book
It would take considerable time if we were to adjourn this matter now and give an opportunity to the parties to include those documents on record
The better course would be for us to set aside the acquittal of the respondents and send back the appeal to the High Court or being decided on merits
The High Court will of course be bound by the finding which we have given on the questions of law agitated before us
What it must now do is to consider the entire evidence and decide for itself whether it is sufficient to bring home all or any of the offences to the respondents
We may mention that the High Court s observation that the approver s evidence was treated as unreliable by the learned Additional Sessions judge is not correct
Of course the view taken by the Additional Sessions judge is not binding on the High Court
But it should remove from its mind the misconception that the Additional Sessions judge has not believed him
There is another thing which we would like to make clear
The decision in Sarwan Singh vs The State of Punjab 1 on which reliance has been placed by the High Court has been explained by this Court in the case of 1 357 Maj
E G Barsay vs The State of Bombay 1
This Court has pointed out in the latter decision that while it must be shown that the approver is a witness of truth the evidence adduced in a case cannot be considered in compartments and that even for judging the credibility of the approver the evidence led to corroborate him in material particulars would be relevant for consideration
The High Court should bear this in mind for deciding whether the evidence of the approver should be acted upon or not
Then again it would not be sufficient for the High Court to deal with the evidence in a general way
It would be necessary for it to consider for itself the evidence adduced by the prosecution on the specific charges and then to conclude whether those charges have been established or not
The prosecution would be well advised if instead of placing the evidence on each and every one of those large number of charges against the respondents it chooses to select a few charges under each head other than the head of conspiracy and concentrates on establishing those charges this would save public time and also serve the purpose of the prosecution
With these observations we set aside the acquittal of the respondents and remit the appeal to the High Court for decision on merits in the light of our observations
Appeal allowed
Case remanded


Summary:
A and B were tried together at one trial A of offences under sections 120 B 409477 A and 471 read with section 476 Indian Penal Code and B of offences under sections 120 B409 read with 109 298 and 471 read with 467 Indian Penal Code
The Sessions judge who tried them convicted A of all the offences charged and B of the first two charges
On appeal the High Court acquitted both of them
The State appealed to the Supreme Court
The respondents contended i that there was a misjoinder of charges and persons on account of the cumulative use of the various clauses of section 239 of the Code of Criminal Procedure which was not permissible ii that no charge of conspiracy could be framed after the conspiracy had fructified iii that the Sessions judge had failed to inform the accused of their right under 3 342  4  of the Code to examine themselves as witnesses iv that the pardon had been granted to the approver illegally v that the approver had been allowed illegally to refresh his memory by reference to documents at the time when he was examined before the Court and vi that the account books of certain firms which contained no entries regarding payments alleged to have been made to them were inadmissible in evidence
Held that there was no misjoinder of charges and of accused persons
It is open to the Court to avail itself cumula tively of the provisions of the different clauses of section 239 of the Code for the purpose of framing charges
Sections 233 to 236 do not override the provisions of section 239
But the provisions of sections 234 to 236 can also be resorted to in the case of a joint trial of several persons permissible under section 239
Even if there was a misjoinder the High Court was incompetent to set aside the convictions without coming to the definite conclusion that the misjoinder bad occasioned failure of justice
Re Fankaralapati Gopala Rao AIR 1936 Andhra 21 and TB Mukherji vs State AIR 1954 All
501 not approved
State of Andhra Pradesh vs Kandimalla Subbaiah  KV Kriahna Murthy Iyer vs State of Madras AIR 1954 SC 406 Willi William Slaney vs State of Madhya Pradesh
  Birichh Bhuian vs The State of Bihar
1964 Supp
2 SCR 328
Held further that where offences have been committed in pursuance of a conspiracy it is legally permissible to charge the accused with these offences as well as with the conspiracy to commit those offences
Conspiracy is an entirely independent offence and though other offences are committed in pursuance of the conspiracy the liability of the conspirators for the conspiracy itself cannot disappear
299 State of Andhra Pradesh vs Kandimalla Subbaiah  relied on
S Swamirathnam vs State of Madras AIR 1957 SC 340 and Natwarlal Sakarlal Mody vs State of Bombay Cr
A No 111 of 1959 dt 191196 1 referred to
Held further that there was no violation of the provisions of section 342 of the Code
The Sessions Judge had erred on the side of overcautiousness by putting every circumstance appearing in the evidence to the accused
Copies of the questions put to the accused were given to them before hand
Any point left over in the questions was covered in the written statements filed by the accused
In such circumstance the length of the questions or of the examination could not prejudice the accused
Further there was no duty cast on the Court to inform the accused of their right under section 342 4 to examine themselves as witnesses
They were represented by counsel who must have been aware of this provision
Held further that the pardon was legally granted to the approver under section 337 of the Code and was a valid pardon
The offences with which the accused were charged were all such in respect of which a pardon could be granted under section 337 1
The offences under section 467 read with section 471 which was exclusively triable by a court of sessions and the offence under section 477 A which was mentioned in section 337 1 itself and thus both fell within the ambit of section 377 1
the offence under section 409
and consequently the offence under section 120 B also was punishable with imprisonment for life or with imprisonment not exceeding ten years and was an offence punishable with imprisonment which may extend to ten years within the meaning of section 337 1
Further tinder GO No 3106 dated September 9 1949 the Madras Government the power of a District Magistrate to grant pardon was specifically conferred on Additional District Magistrates and the Additional District Magistrate Independent who granted the pardon in the present case was competent to do so
Held further that the Sessions judge acted legally and properly in allowing the approver to refresh his memory while deposing by referring to the account books and other documents produced in the case
Where a witness has to depose to a large number of transactions and those transactions are referred to or mentioned either in the account books or in other documents there is nothing wrong in allowing the witness to refer to the account books and the documents 300 while questions are put to him
Such a course is specifically permitted by sections 19 and 160 of the Evidence Act
Held further that the account books of the firms which contained no entries with respect to payments alleged to have been made were not relevant under section 34 of the Evidence Act as that section is applicable only to entries in account books regularly kept and says nothing about non existence of entries
But they were relevant under section I I of the Act as the absence of the entries would be inconsistent with the receipt of the amounts which was a fact in issue
They were also relevant under section 5 to prove the facts alleged by the prosecution that payments were never made to these firms and that those firms maintained their accounts in the regular course of business and both these were relevant facts
Queen Empress V Grees Chander Banerjee 1884 ILR IO Cal 1024 and Ram Pershad Singh vs Lakhpati Koer Cal 231 referred to