1. AHSANUDDIN CHOUDHURY, J.--These 15 Revisions at the instance of petitioner A. S. M. Faruq, are for quashing the proceedings of 15 Special cases being Special Cases Nos, 51 to 63 72 and 73 of 1962 pending against the petitioner in Courts of some Special Judges at Barisal.
2. The facts giving rise to the above Revisions are as state follows:-- The petitioner A. S. M. Faruq was Assistant Tahsildar in charge of Barabagi Tahsil, P. S. Amtali, Bakerganj till May 1961.
3. On 9th May 1961, there was a cyclone accompanied with tdidal bore. After the cyclone the petitioner sent a report to the Additional Deputy Commissioner (Revenue) stating that due to the cyclone records of the Tahsil, Government cash amounting to Rs, 1,493, and odd and other valuable documents were missing. On receipt of that report, Mr. M. A. Wahab, Extra Assistant Commissioner (Revenue), Bakerganj held an enquiry and lodged a written First Information Report alleging defalcation of a huge amount of money by the petitioner. According to the auditor's report the petitioner received a sum of Rs, 1,27,647.54 paisa under different heads, namely, rent, cesses, local rates, D. R. taxes, loans etc. during the period from 1-7-60 to 30-4-61 deposited a sum of Rs, 96,866.96 paisa in Patuakhali Sub-reasury on different dates from 1-7-60 to 9-5-61 and Rs, 30,780.58 paisa was lying with him. D. A. B. Police took up the investigation and after completing the investigation and obtaining sanction submitted charge sheet No, 60, dated 14-12-62 against the petitioner and others for the entire amount of Rs, 30,780 58. The said case was however split up into 16 special cases including the main one. The petitioner and two others faced a trial in the Court of a Special Judge, Barisal in which the accusation against the petitioner was that he misappropriated a sum of Rs, 30,780.58 paisa but he was brought on trial for misappropriation of a sum of Rs, 27,099.44 out of the gross sum of Rs, 30,680.56 and it was further stated in the accusation that for the balance amounting to Rs, 3,681.14 paisa several cases (15 in number) as it appears were pending against him.
4. The petitioner in the said case pleaded not guilty to the charge levelled against him. He gave a complete denial to the charge of misappropriation of the amount of Rs, 27,099.44 paisa for any amount. His defence was that an amount of Rs, 1,493 and odd was the cash in hand which was kept in the iron safe of the Tahsil and that on 9-5-61 there was a devastating cyclone accompanied with tidal bore which swept away all the books of account, drifted the iron from its original place and the lid was opened by the pressure of the tidal bore. The said amount (Rs, 1,493 and odd) was in a bag inside the iron safe and the bag was missing from the iron safe and ultimately it was found by one Karim from whom the said amount was recovered. There was, therefore, no misappropriation of Government money.
5. The learned Special Judge found that the prosecution could not prove the exact amount lying with the petitioner on the relevant date. He however found that the petitioner had at least misappropriated a sum of Rs, 1,493 and odd which was with him as per his report till the cyclone and the tidal bore hit that part of the country on 9-5-61. The learned Special Judge did not accept the defence case that the said sum of money was washed away and ultimately was found by Karim.
6. At the conclusion of the trial the petitioner was convicted under section 409, P. P. C. and under section 5 (2) of Act II of 1947. He was sentenced under section 409, P. P. C. to undergo rigorous imprisonment for 2 years and to pay a fine of Rs, 2,000 in default to suffer rigorous imprisonment for six months more. No separate sentence was imposed on him under section 5 (2) of Act II of 1947.
7. The petitioner thereupon preferred an appeal being Criminal Appeal No, 303 of 1964 to this Court.
8. This Court allowed the appeal, set aside the convictions and sentence and acquitted the petitioner.
9. During the pendency of Criminal Appeal No, 303 of 1964 in this Court, the 15 cases in respect of which these Rules were obtained remained stayed and after disposal of the appeal by this Court resulting in the acquittal of the petitioner, those cases were about to be taken up for trial whereupon the petitioner moved the Senior Special Judge for a reference to this Court for quashing the aforesaid 15 cases but the Senior Special Judge having declined to make the reference the present Rules were obtained.
10. The learned Advocate appearing for the petitioner contended that the 15 special cases pending against the petitioner ought to be quashed because there was no reason for the prosecution to split up the main case into several cases since the case was based on a single Audit Report Exh. 33 as well as on the First Information Report Exh. 2 for defalcation of a gross sum of Rs, 30,780.58 paisa.
11. It is therefore quite clear that the prosecution had full knowledge of the entire defalcated amount and that there was no legal bar or disadvantage for the prosecution to place the petitioner on a single trial for the whole amount in one case. The prosecution, however chose to place the petitioner on trial in Special Case No, 2 of 1963 for a sum of Rs, 27,099.44 paisa out of the gross sum of Rs, 30,780.58 paisa leaving the balance amounting to Rs, 3,681.14 paisa which was split up in 15 cases by the prosecution. The learned Advocate therefore strenuously argued that the prosecution proceeded in that manner only to harass the petitioner and to ruin him financially. The petitioner, it was submitted, has been suffering from mental worries since 1961. It was also pointed out that the learned Special Judge having held in the Special Case No, 2 of 1963 that the prosecution had failed to prove that the petitioner had more than Rs, 1,493 and odd with him on the relevant date, that is, on 9-5-61 and this Court having found that the said amount was missing but was recovered and deposited in Treasury, the prosecution should not be allowed to harass the petitioner by further frivolous trials in the pending 15 cases which were brought into existence out of the main case and also in view of the fact that the petitioner satisfactorily accounted for the money which was in his possession prior to the cyclone and the tidal bore. In these circumstances it was urged that if further trial of the petitioner be not disallowed by this Court by quashing the proceedings of the aforesaid 15 cases, there will be a sure abuse of the process of law and the prosecution will be given the liberty to pursue its capricious course of harassing the petitioner. In support of his contentions the learned Advocate for the petitioner referred to subsection (2) of section 222 of the Criminal Procedure Code. Subsection (2) of section 222, Cr. P. C. runs as follows:-- "When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 34. Provided that the time included between the first and last of such dates shall not exceed one year."
12. The learned Advocate relying on the above quoted subsection (2) of section 222, Cr. P. C. submitted that the instant case satisfied all the conditions embodied therein because the gross sum alleged to have been misappropriated amounted to Rs, 30,780.58 paisa and it was known to the prosecution, the period of defalcation was from 1-7-60 to 30-4-61 and this period did not exceed one year. The basis of the case, it was pointed out, was the Auditor's report which was Exh. 33 in the previous trial. There was one First Information Report Exh. 2 lodged by Mr. M. A. Wahab and after investigation a Charge-Sheet No, 60 dated 14-12-62 for the entire amount of Rs, 30,780.58 paisa was submitted. But as already noticed the case was split up into several Special cases. It has however been urged that the main case for a major portion of the gross sum having failed the prosecution should not be allowed to proceed with the 15 pending cases against the petitioner with a view to stop the abuse of the process of law and save the petitioner from prosecution in the name of prosecution for a certain offence in respect of which he has already faced a trial.
13. The above contention of the learned Advocate seems to have much force. In support of this contention the learned Advocate for the petitioner relied upon some decisions also. Here we will refer only to those cases which are nearly on all points with the instant case. The cases are Sidh Nath Awasth i v. Emperor , Chaman Lal v. Emperor and Emperor v. Anant Narayan Kulkarni , In Sidh Nath's case the allegation was that the accused committed Criminal breach of trust in respect of a gross sum of Rs, 3,651-5-3 p. The Additional Chief Presidency Magistrate of Calcutta issued warrant against the accused. The case was thereafter transferred to the 4th Court of the Presidency Magistrate. But charges in respect of 3 items only were framed against the accused as being the items in respect of which criminal breach of trust was committed by the accused and he was convicted and sentenced on those charges on 8th Feb-ruary 1928. Thereafter on 14th April 1928, another challan was submitted by the police to the Additional Chief Presidency Magistrate stating that the accused committed criminal breach of trust in respect of 3 sums of money which was included in the aforesaid gross sum. The accused when brought up for a second trial objected to the trial on the ground the having been tried already for the whole offence that he had committed, he could not be tried again. But the objection was disallowed and the petitioner was tried and ultimately convicted in respect of the said 3 items. The accused then moved the High Court. In this case Mukerjee, J. considered some earlier cases and held as follow s:-- "The present case is one in which the prosecution knew perfectly well what was the gross sum in respect of which the petitioner had committed criminal breach of trust. It was a sum of Rs, 3,651-5- 3 p. They could have, if they liked, proceeded against the petitioner in respect of this gross amount under section 222 (2), Cr. P. C. Instead of doing so they elected to proceed on three items and got the petitioner convicted. Then they picked up three other items and got the accused tried a second time. Though section 403, Cr. P. C. may not strictly apply in its terms to a case like the present still1 2 3 there is abundant authority for the view that a second trial in the circumstances such as these ought not to have been allowed to be held."
14. It was further held by his Lordship as follows:-- "I am of opinion that if the petitioner had moved this Court for stopping his second trial he would have found no difficulty in getting an order in his favour."
15. But the second trial having already been held and ended in conviction it was found too late to quash it but in that view of the matter, the sentence was reduced to one day's rigorous imprisonment. In the case before us the second or subsequent trial has not been held. The petitioner moved this Court when the 15 pending cases which are split up cases of the main case were about to be taken up and obtained the Rules.
16. In the case of Chaman La! v. Emperor the accused who was acquitted on 3 charges was subsequently prosecuted for remaining 5 similar charges. It was found that the evidence in the remaining 5 cases being identical with that in the three cases in which the accused was acquitted, it would amount to an abuse of the process of the Court if the accused be allowed to further prosecuted in those cases and the High Court under section 561-A, Cr. P. C. quashed the trial of the accused in the five cases.
17. In Emperor v. Anant Narayan Kulkarni it was held that even though the plea of autre fois acquit under section 403, Cr. P. C. was not technically available to the accused, the principle thereof was available to him in the interest of justice and that the accused should not be tried again in respect of the third offence and should be acquitted. The allegation in that case was that the accused was found to have misappropriated a sum of Rs, 655-0-6. Two complaints were filed against the accused. In the first complaint he was charged under sections 409 and 466 for having misappropriated two sums of Rs, 10 and Rs, 40 out of the sum of Rs, 655-0-6 from 19th March to 19th June 1941, and forged two receipts with respect to those amounts. In the second complaint the accused was charged under section 409 with criminal breach of trust in respect of the sum of Rs, 572-15-8 out of the total sum of Rs, 655-0-6 committed between 25th April and 19th June 1941. In the trial for the first two offences the accused was acquitted. In the trial for the third offence the accused claimed to be tried and at the same time objected that in view of his previous acquittal the proceedings were barred under section 403 and that he was entitled to acquittal. In this case Sen, J. considered a number of authorities and held that the accused should not be tried again in respect of the third offence.
18. The learned Advocate for the petitioner referred us also to one unreported decision of a Division Bench of this Court disposing of Criminal Revisions Nos, 139 of 1962 and 650 of 1963. In Criminal Revision No, 139 of 1962, Special Case No, 55 of 1959 was sought to be quashed and Criminal Revision No, 650 of 1963 was aimed at quashing the proceeding in a Tribunal Case No, 2 of 1960.
19. Criminal Revision No, 650 of 1963 which aimed at quashing the proceeding of Tribunal Case No, 2 of 1960 was not ultimately pressed, inasmuch as the offences complained of were entirely different.
20. The rule thereof was, therefore, discharged. But the Rule in respect of Criminal Revision No, 139 of 1962 relating to quashing of Special Case No, 55 of 1959 was entertained with direction to discontinue proceedings of Special Case No, 55 of 1959, as the prosecution could very well include in the previous trial the offences complained of in the second trial, namely, in Special Case No, 55 of 1959, inasmuch as all the offences were of the same character and committed in course of the same transactions and were also within the knowledge of the prosecution. Hence in the opinion of their Lordships, the proceedings seemed to be oppressive and not calculated to secure the ends of justice and as such the Court should not idly watch this kind of harsh endorsement of the letter of the law. In this view of the matter further prosecution was disallowed and the Rule in Criminal Revision No, 139 of 1962 was made absolute.
21. The learned Deputy Legal Remembrancer in reply submitted before us that in the earlier trial which ultimately ended in acquittal of the petitioner notice was given that the petitioner was being tried for certain amount of defalcated sum and that for the remainder of the said sum he would be brought on trial again and that at the trial no objection was raised against the splitting a separate and distinct offence. He therefore argued that the provisions of section 222 (2) of the Cr. P. C. and the cases referred to by the learned Advocate for the petitioner would not bar the trial of the petitioner in the 15 pending cases. In this connection he relied on a decision of a Division Bench of this Court in the case of Mazharul Haque v. The Crown to show that second trial is not barred. He further argued that the judgment in a previous trial will not be relevant in a subsequent trial.
22. We are unable to agree with the learned Deputy Legal Remembrance on any of the points pressed by him in reply. There is nothing to show that the prosecution can proceed in any manner it likes simply by telling the accused that he will be prosecuted and tried in as many as 15 more cases which are undisputedly split up from the main case and based on the same facts and identical evidence. The argument that each defalcation constitutes distinct and separated cause of action, that the splitting up of the case was not objected to by the accused would not hold good in view of the provisions of subsection (2) of section 222, Cr. P. C. and the consensus of decisions referred to above. Subsection (2) of section 222 of the Criminal Procedure Code is an enabling section and it enacts that it is sufficient to specify the aggregate sum without going into details. This subsection
(2) was not enacted by the Legislature without any purpose. It provides apparently great advantage both to the prosecution as well as to the accused. As regards the prosecution it affords an exception to the general rule embodied in section 234, Cr. P. C. and so far as the accused is concerned, he is not to face as many trials as the prosecution chooses to have against him, if the facts of the case satisfy the conditions embodied in A subsection (2) of section 222, Cr. P. C. The present case, as already noticed, satisfied all the conditions to place the petitioner on one trial for the offence of misappropriation of a gross sum and the prosecution was fully aware of the gross sum alleged to have been misappropriated. It was not therefore proper for the prosecution not to avail of the enabling provision of law. We cannot conceive of a more harassing method of proceeding with the prosecution than the one adopted in this case by splitting up the main case of defalcation into 15 special cases besides the main one. The consensus of judicial pronouncements is against this kind of harassing method of prosecution.
23. In the case of Mazharul Haque it was held among other findings that whether a particular trial is barred by reason of previous prosecution ending in conviction or acquittal is a question to be determined on the facts and circumstances of the case. One of the tests, it was held, was whether the facts were the same or not. But the true test is not so much whether the facts are the same in both trials as whether the acquittal or conviction from the first charge necessarily involved an acquittal or conviction on the second charge. In Mazharul Haque's case the accused was placed on trial under sections 409 (misappropriation), 465 (forgery) and 47 7-A (falsification of accounts) in respect of 3 items of money namely Rs, 500, on the 2nd August 1945, Rs, 300, on the 27th August 1945, and Rs, 500, on the 19th September 1945. The accusation were that the accused defalcated more than Rs, 50,000 along with others during 1943 to 1947. Upon trial the accused was acquitted of the charges under sections 4G9 and477-A and convicted and sentenced under section 465, Penal Code. The accused was called upon to face a second trial to answer charges under sections 409, 465 and 477-A in respect of a sum of Rs, 500, the date of commission of the offence being 25th January 1947, or near about that time. He was acquitted of the charge under section 409 but was convicted and sentenced under sections 465 and 477-A. It was held that the trial was not bad because the offences charged in the 2nd trial were distinct and separate and it was further found in that case that the relevant item was not within the period covered by the previous charge, in that view of the matter their Lordships were of the opinion that the prosecution was not barred under section 403 of the Code of Criminal Procedure. But we respectfully hold that Mozaharul4 Haque's case is distinguishable on facts not only from the instant case under our consideration but also from the cases relied upon by the learned Advocate for the petitioner before us. In the instant case there is no charge of forgery or falsification of accounts. The charge is only for criminal breach of trust and dishonest misappropriation of a gross sum of money which was known to the prosecution. Nevertheless, the petitioner was not placed on one trial for the misappropriation of the gross sum in accordance with the enabling provisions of subsection (2) of section 222, Cr. P. C. but the prosecution split up the case into 16 special cases including the main one. In all these cases the evidence will be identical with what was produced in the previous trial and the defence would also be exactly the same as it was in the previous trial. It may reasonably be said that acquittal of the petitioner from the first charge will necessarily lead to acquittal in the pending cases in view of the similar facts and circumstances involved in these cases.
24. The whole charge against the petitioner could have been tried in the first trial if the prosecution would have included in the first charge the gross sum of the alleged defalcation about which it had full knowledge. It is not a question as to how far the findings in the judgment of the previous trial are relevant in the subsequent trial. It is on a question of extreme harassment to the accused and the failure of the prosecution to place the accused on one trial according to law that further prosecution should not be allowed.
25. The special case was started in 1961, and it is now 1970. If the prosecution is permitted to prosecute 15 cases one after another, the harassment of the accused-petitioner will know no bounds. As there was no legal bar for holding one trial against the petitioner in view of subsection (2) of section 222, Criminal Procedure Code, we are of the opinion that the prosecution should have followed that provision of law-and that the proceedings in 15 special cases mentioned above should not be allowed to continue on the ground of abuse of the process of law and extreme harassment to the accused petitioner.
26. Accordingly these Rules are made absolute and the proceedings are quashed.
27. A. M. SAYEM, J.--I agree. 33 C W N 454 AIR 1943 Lah. 304 AIR 1945 Bona. 413 8 D L R 250