Judgment Case ID: 1166

Judgment:
minal Appeal No. 109 of 1960. Appeal by special leave from the judgment and order dated April 18	 1958	 of the Andhra Pradesh High Court in Criminal	 Misc. Petition No. 1421 of 1957. H. J. Umrigar and T. M. Sen	 for the appellant. The respondent did not appear. March 8. The Judgment of the Court was delivered by MUDHOLKAR	 J. The State of Andhra Pradesh has come up in appeal against the order passed in revision by the high Court of Andhra Pradesh quashing the charges framed against nine persons by Mr. Syed Firasath Hussain	 Special Judge	 Vijayawada. The revision petition was preferred by only two of those persons. The accused No. 1 Parthasarathi	 who was a lower division clerk in the Central Excise Circle Office at Narasaraopet was in charge of the TP 1 permit books (transport permit) intended for issue to Central Excise Officers for granting permits to persons applying bona fide for licences to transport tobacco. According to the prosecution two of those books containing 25 permit forms each were found missing from the aforesaid office. The allegation is that Parthasarathi sold those books to the remaining accused for a consideration of Rs. 400. It was found during the investigation that seven permit forms from out of these books bad been used for transport of non duty paid tobacco after blanks in those forms had been filled and the signa tures of certain Central Excise Officers forged on them. Further	 according to the prosecution	 accused nos. 2 to 8 got authorisation letters prepared with the help of accused No. 9 'by forging the signatures of the supposed consignors of the tobacco. With the help of 197 these documents the accused nos. 2 to 8 are said to have transported tobacco to the licensed premises of certain persons and received payments for the tobacco delivered to them. The prosecution alleged that all this was done by all the accused by entering into a conspiracy	 the object of which was to procure and utilise blank TP 1 forms	 fill them in	 forge the signatures of Central Excise Officers and use them as genuine for the purpose of transporting tobacco without paying duty upon it. The charge sheet states that the accused nos. 1 to 9 have committed the offence under section 120 B	 Indian Penal Code read with a. 5(2) of Prevention of Corruption Act	 1947 (II of 1947). It further states that the accused No. 1 had committed offenses under section 5(1)(c) and 5(1)(d) of Prevention of Corruption Act	 1947 as also offenses under sections 420	 463 and 464	 Indian Penal Code. The accused nos. 2 to 8 are said to have abetted all these offenses. Each of these accused is in addition said to have committed offenses under section 420	 Indian Penal Code. The Subordinate Judge	 Vijayawada was appointed as Special Judge under the provisions of section 6 of the Criminal Law Amendment Act	 1952 (II of 1952) to try offenses under the Prevention of Corruption Act	 1947. He framed the following charges: "CHARGE NO.1. That you	 Accused 1 to 9 on or about 19 9 1953 to 5 11 53 agreed to do by illegal means to wit	 A 1 being a public servant in the Central Excise Department dishonestly sold two blank T.P. 1 books for Rs. 350 to one late Jogayya and obtained pecuniary advantage for himself and A 2 to A 8 and that A 9 forged 7 T.P. 1 forms	 out of the above two books	 which forged T.P. 1s were used by A 2	 A 3	 A 5	 A 7	 A 8 with the assistance of A 4 and A 6 and cheated the merchants of Markapur and Cumbum by using the said forged T.P. 1s for the above purpose of cheating; and that the above acts were done by all of you in pursuance of a conspiracy and that thereby you A 1 have committed an offence punishable under Section 120B of the I.P.C. read with and (d) punishable under Sec. 5(2) of the Prevention of Corruption Act and also under Sec. 109 I.P.C. read with Sec. 490	 466 and 467 of the I.P.C. and that you	A 2 to A 9 under See. 120 B read with Sec. 5(1)(c) and (d) punishable under See. 5(2) of Act 11 of 1947 and See. 420	 466 and 467 and 471 I.P.C. and within my cognizance. CHARGE NO. That you A 1	 being a public servant in the Central Excise Department	 being a Lower Division Clerk in the office of the Superintendent of Central Excise	 Narasaraopet Circle	 since 1951 and in such capacity were entrusted since 1951 with blank T.P. 1 books dishonestly sold two of the above said T.P. 1 books under your control to one late Jogayya for Rs. 350	 in or about the month of April	 1953 and dishonestly	 fraudulently misappropriated the said amount and thereby committed the offence of misconduct punishable under Section 5(2) read with See. 5(1)(c) of the Prevention of Corruption Act	 11 of 1947 and within my cognizance. CHARGE NO. 111. That you A 1	 in the above capacity	 by corrupt and illegal means	 and by abusing your position as a public servant	 obtained for yourself an amount of Rs. 350 being the sale proceeds of the two Blank T.P. 1 books	 from one late Jogayya and obtained for A 2 to A 8	 a pecuniary advantage of Rs. 10	120 14 0	 th e amount of revenue due to the Central Govern ment and thereby committed the offence of Criminal misconduct punishable under See. 5(2) read with Sec. 5(1)(d) of the Prevention of Corruption Act 11 of 1947 and within my cognizance. CHARGE TO. That you	 A 9	 on or about the days between September and November	 1953 forged 7 blank T.P. ls Nos. 610432	 610443	 610460	610448	61044	 610468	 610446 as if they are documents to have been made by the Central Excise Officials in their official capacity by filling up the same within false particulars and fixing the signatures of different 199 Central Excise Officials so as to show that they are genuine T.P. 1 permits 'hat you thereby committed an offence punishable under Section 466 I.P.C. and within my cognizance. CHARGE No. V. That you	 A p	 on or about the days between September and November	 1953 forged the 7 T.P. 1 permits mentioned in Charge No	 IV purporting to be valuable securities with intent and that they may be used for transporting tobacco as duty paid tobacco and that you thereby committed an offence punishable under Section 467 of the I. P. C. and within my cognizance. CHARGE No. VI. That you	 A 2 to A 8	 on	 or about the days between 12 9 53 and 5 11 53 at Chodavaram	 Satulur	 Velpur and Tenali dishonestly used the above seven forged T.P. Is mentioned in Charge No. IV as genuine	 Which you know at the time you used them as forged documents and transported 26	989 lbs. non duty paid tobacco as duty paid tobacco by quoting the above fictitious documents as proof of payment of duty and that you ' thereby committed an offence punishable under Section 465 and 471 of the I.P.C. and within my cognizance. CHARGE No. VII. That you	 A 2 to A 8	 on or about the days between 19 9 53 and 6 11 53 at Cumbum and Mar kapur cheated (1) B. Ranga Subbayya of Cumbum (2) P. C	 h. Venkata Subbaiah and (3) Shri B. Seshaiah of Markapur and thereby dishonestly inducing them to deliver you	 Rs. 10	994 10.3	 was the property of the above said persons; and that you thereby committed an offence punishable under Section 420 I.P.C. and within my cognizance. " While seven of the accused persons were content with the charges		 two preferred an application for revision before the High Court which	 as already stated	 accepted it and quashed the charges and directed the Special Judge to frame fresh charges on the lines indicated in the judgment. 200 Mr. Umrigar	 who appears for the State of Andhra Pradesh	 while conceding that Charge No. 1 as it stands	 is involved and obscure and requires to be reframed takes exception to the observation of the High Court that the charge is bad for multiplicity. 	It not quite clear what the High Court me ant. If it meant that separate charges should be framed for different offenses there can be no objection; but if it meant that all these accused cannot be tried at the same trial then we have no doubt that it was in error. The High Court pointed out that this is an omnibus charge containing as many as 203 offenses and that it is 'in direct violation of sections 234	 235 and 239 of the Code of Criminal Procedure. No doubt	 sub section (1) of section 234 provides that not more than three offenses of the same kind committed by an accused person within the space of 12 months can be tried at the same trial. But then section 235(1) provides that if in any one series of acts so connected together as to form the same transaction more offenses than one are committed by the same person	 he may be charged with and tried at one trial for every such offence. Therefore	 where the alleged offenses have been committed in the course of the same transaction the limitation placed by section 2314(1) cannot operate. No doubt	 the offence mentioned	 in charge No. 1 is alleged to have been committed not by just one person but by all the accused and the question is ' whether all these persons can be jointly tried in respect of all these offenses". To this kind of charge s.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 an offence and persons accused of abetment or an attempt to commit such an offence; (3) persons accused of different	 offenses committed in the course of the same transaction. Clearly	 therefore	 all the accused persons could be tried together in respect of all the offenses now comprised in charge No. 1. We	 however	 agree with 201 Mr. Umrigar that it would be desirable to split up charge No. 1 suitably go that the accused persons will not be prejudiced in answering the charges and in defending themselves. The learned Judge has hold	 following a decision of a single Judge in In re Venkataramaiah (1) that no charge of conspiracy is permissible for committing which the conspiracy was entered into and which had actually been committed. In that case the learned Judge had observed as follows at p. 132: "Where the matter has gone beyond the stage of more conspiracy and offences are alleged to have been actually committed in pursuance thereof	 these two sections are wholly irrelevant. Conspiracy	 it should be borne in	 mind	 is one form of abetment (see section 107 I.P.C.) and where an offence is alleged to have been committed by more than two persons	 such of them as actually took part in the commission should be charged with the substantive offence	 while those who are alleged to have abetted it by conspiracy should be charged with the offence of abetment under section 109 I.P.C. The Explanation to section 109 makes this quite clear. An offence is said to be committed in consequence of abetment	 when it is committed in pursuance of the conspiracy	 and the abettor by conspiracy in made punishable (under section 109) with the punishment provided for the actual offence. " We are unable to accept this view. Conspiracy to commit an offence is itself an offence and a person can be separately charged with	 respect to such a conspiracy. There is no analogy between section 120B and section 109 I.P.C. There may be an element of abetment in a conspiracy; but conspiracy is something more than an abetment. Offences created by section 109 and 120B	 I.P.C. are quite distinct and there is no warrant for limiting the prosecution to only one element of con spiracy	 that is	 abetment when the allegation is that what a person did was something over and above that. Where	& number of offences are committed by (1) A.I.R. 1935 Mad. 130	 132. 202 several persons in pursuance of a conspiracy it is usual to charge them with those	 offences as well as with the offence of conspiracy to commit those offences. As an instance of this we may refer to the case in section Swaminatham vs State of Madras (1). Though the point was not argued before this Court in the way it appears to have been argued before the Madras High Court and before the High Court of Andhra Pradesh	 this Court did not see anything wrong in the trial of several persons accused of offences under section 120B and section 420 I.P.C. We cannot	 therefore	 accept the view taken by the High Court of Andhra Pradesh that the charge of conspiracy was bad. If the alleged offences are said to leave flown out of the conspiracy the appropriate form of charge would be a	 specific charge in respect of each of those offences along with the charge of conspiracy. Before leaving this point we would like to refer to the decision in R. vs Dawson (2) which Mr. Umrigar very fairly brought to our notice	 respondents being ex parte. In that case Finnemore J. who delivered the judgment of the Court observed: "Now with regard to the first count for con spiracy. . this court feels it is desirable 'Jo say something. This court has more than once warned of the dangers of conspiracy counts	 especially these long Conspiracy counts	 which one counsel referred to as a mammoth conspiracy. Several reasons have been given. First of all if there are substantive charges which can be proved	 it is in general undesirable to complicate matters and to lengthen matters by adding a charge of conspiracy. Secondly	 it can work injustice because it means that evidence	 which otherwise would be inadmissible on the substantive charges against certain people	 becomes inadmissible. Thirdly	 it adds to the length and complexity of the case so that the trial may easily be well High unworkable and impose a quite intolerable strain both on the Court and on the jury. The learned Judges in fact quashed the conviction (1) A.I.R. 1957 S.C. 340	 343	 344. (2) [1960] 1 All. E.R. 558	 563. 203 for conspiracy in the case before them. We agree that it is not desirable to charge the accused persons with conspiracy with the ulterior object of letting in an evidence which would otherwise be inadmissible and that it is undesirable to complicate a trial by introducing a large number of charges spread over a long period. But then this is only a question of propriety and it should be left to the Judge or the magistrate trying the case to adopt	 the course which he thinks to be appropriate in the facts and circumstances of the case. It cannot be said as a matter of law that such a trial is prohibited by the Code of Criminal Procedure. The High Court has further held that the learned Special Judge had no jurisdiction to try the offences under section 120B read with sections 466	 467 and 420 because he was appointed a Special Judge under the Criminal Law Amendment Act only for trying offences under the Prevention of Corruption Act. No doubt	 he was appointed in the circumstances stated by the High Court	 and therefore he will have that jurisdiction which he is competent to exercise under the Prevention of Corruption Act or the Criminal Law Amendment Act. Section 6 of the former provides that the State Government may appoint a Special Judge to try the following offences: (a) an offence punishable under section 161	 section 165 or section 165A of the Indian Penal Code (Act XLV of 1860) or sub section (2) of section 5 of the Prevention of Corruption Act	 1947 (11 of 1947); (b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a). Sub section (1) of section 7 provides that notwithstanding any. thing contained in the Code of Criminal Procedure	 1898 or in any other law the offences specified in sub section (1) of section 6 shall be triable by special judges only. Sub section (3) of section 7 provides that when trying any case	 a special judge may also try any offences other than an offence specified in section 6 with which the accused may under the Code of Criminal Procedure	 1898 be charged at the same trial. 204 Clearly	 therefore	 accused No. 1 could be tried by the Special Judge for offences under 'section ' 120 B read With sections 466	 467 and 420 I.P.C. Similarly the other accused who are	 said to have abetted these offences could also be tried by the Special Judge. The view of the High Court is thus erroneous and its directions with respect to these offences are set aside. The High Court has further held that the provisions of a 196A(2) of the Code of Criminal Procedure have not been complied with and therefore the charges in respect of offences under as. 466 and 467 could not be enquired into by the Special Judge; section 196A(2) of the Code of Criminal Procedure reads thus: "No Court shall take cognizance of the offence of criminal conspiracy punishable under section 120B of the Indian Penal Code	 (2) in a case where the object of the conspiracy is to commit any non cognizable offence	 or a cognizable offence not punishable with death	 imprisonment for life or rigorous imprisonment for a term of two years	 or upwards	 unless the State Govern ment	 or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the State Government	 has	 by order in writing	 consented to the initiation of the proceedings: Offences under sections 466 and 467 are admittedly non cognizable and	 therefore	 it would seem from the plain language of sub section (2) that for the offences under section 120 B read with sections 466 and 467	 I.P.C. the sanction of the Government will be necessary. Mr. Umrigar referred us to the decision in Durgadas Tulsiram Sood vs State (1) and said that since the object of the conspiracy was to cheat the Government	 that is	 to commit an offence under section 420 I.P.C. and the offences under as. 466 and 467 were only means to that end	 the trial was not vitiated simply because no sanction was obtained for prosecuting the accused for offences of criminal conspiracy to commit non cognizable offences; under as. 466 and 467 I.P.C. We do not think it necessary to say anything on the point because in (1) I.L.R. 205 any case the case has to go back to the Special Judge for re framing the charges and there is time enough for the Government to consider whether it should accord sanction to the prosecution of the various accused for the non cognizable offences alleged to have been committed by them in pursuance of conspiracy	 assuming of course	 that sanction is necessary. In the result we allow the appeal and set.aside the order of the High Court and direct the Special Judge to	 frame fresh charges and proceed with the trial. The matter has been pending for a long time and we direct that the trial will proceed with. all expedition. Appeal allowed. Retrial ordered.

Summary:
The High Court quashed the charges framed against the respondents. The charge sheet stated that accused 1 to 9 had committed offenses under section 12oB of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act	 1947	 and that accused No. had committed offenses under SS. 5(1)(c) and 5	 (i)(d) of the Prevention of Corruption Act and SS. 463	 464 Of the Indian Penal Code and accused 2 to 8 abetted all the offenses and each of the accused in addition had committed offenses under section 420 Of the Indian Penal Code. The High Court directed the Special judge to frame fresh charges inter alia on the ground that charge No. 1 was an omnibus charge containing as many as 203 offenses and that it was direct violation of SS. 234	 235 and 239 Of the Code of Criminal Procedure. Further that the Special judge had no jurisdiction to try the offenses under section 120B read with SS. 466	 467 and 420 Of the Indian Penal Code because he was appointed a Special judge under the Criminal Law Amendment Act	 only for trying offenses under Prevention of Corruption Act. The question was whether all the accused	 persons could be jointly tried in respect of all these offenses. Held	 that when several persons had committed offenses	 in the course of the same transaction	 they could jointly be tried in respect of all those offenses under section 239 Of the Code of Criminal Procedure and the limitation placed by section 234 Of the Code could not come into operation	 but the charges should be suitably split up so that the accused persons would not be prejudiced in answering the charges and defending themselves. Held	 further	 there is no analogy between section 120B and section Log of the Indian Penal Code. There may be an element of abetment in a conspiracy which is an offence by itself but conspiracy is something more than abetment for which a person could separately be charged. Offenses created under SS. 109 and 120B of the Indian Penal Code are quite distinct and there is no warrant for limiting the prosecution to only one element of conspiracy	 that is	 abetment when the allegation is that what a person did was something over and above that. If the alleged offenses flow out of the conspiracy the appropriate form of charge would be a specific charge in respect of each of those offenses along with the charge of conspiracy. Held	 further	 that the introduction of a large number of charges spread over a long period was a question of propriety and 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. Held	 also	 that while a special judge appointed under section 6 of the Criminal Law Amendment Act has jurisdiction to try cases under section 5 of the Prevention of Corruption Act he can under section 7(3) Of the Criminal Law Amendment Act try other offenses under the Criminal Procedure Code for which the accused can be charged at the same trial. 196 In re Venkataramaiah	 A.I.R. 1938 Mad. 130	 disapproved. section Swaminatham vs State of Madras	 A.I.R. 1957 S.C. 340	 R. vs Dawson	 [1960] 1 All E.R. 558 and Durgadas Tulsiram Sood vs State	 I.L.R. 	 referred to.