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IN THE HIGH COURT OF ALLAHABAD
Kidwai, J.
INDU BHUSHAN GHOSH - Appellant
Versus
THE STATE - Respondents
Criminal Revn. 36 Of 1950
Decided On : 05/30/1950
CRIMINAL LAW - TRIAL - JOINDER OF CHARGES - OFFENCE OF FALSIFICATION OF MEASUREMENT BOOK - MULTIPLE ENTRIES CONSTITUTING ONE TRANSACTION - NOT DISTINCT OFFENCES - CHARGE NOT DEFECTIVE - SANCTION FOR PROSECUTION OF GAZETTED RAILWAY SERVANT - NOT REQUIRED UNDER SECTION 197, CRIMINAL PROCEDURE CODE - CONSPIRACY TO CHEAT - PUNISHABLE UNDER SECTION 420, PENAL CODE - PERMISSION UNDER SECTION 196A(2), CRIMINAL PROCEDURE CODE NOT NECESSARY - EXAMINATION OF ACCUSED UNDER SECTION 342, CRIMINAL PROCEDURE CODE - FAILURE TO ASK RELEVANT QUESTIONS - NO PREJUDICE CAUSED - CONVICTION UPHELD - SENTENCE - SEVERITY - LOSS OF SERVICE AS A RELEVANT FACTOR - DETERRENT EFFECT OF PUNISHMENT ALSO TO BE CONSIDERED.
Fact of the Case:
The accused, Mr. Ghosh, an Assistant Engineer, and Ram Sewak, a contractor, were charged with conspiracy to cheat the Railway by submitting false bills for work done on a railway track. Mr. Ghosh was also charged with falsifying the measurement book by making false entries. The trial court convicted both the accused and sentenced them to imprisonment. They appealed to the Additional Sessions Judge, who upheld the convictions and sentences.
Finding of the Court:
The High Court held that the trial was not vitiated by any legal defect. The charge of falsification of the measurement book did not infringe the provisions of Sections 233 and 234, Criminal Procedure Code, as the multiple entries constituted one transaction and not distinct offences. Sanction for the prosecution of Mr. Ghosh, a gazetted railway servant, was not required under Section 197, Criminal Procedure Code, as the Railway Board was not the Provincial Government or the Central Government. Permission under Section 196a(2), Criminal Procedure Code, was not necessary as the conspiracy was to commit an offence punishable under Section 420, Penal Code, and not under Section 417, Penal Code. The failure of the Magistrate to ask relevant questions during the examination of the accused under Section 342, Criminal Procedure Code, did not cause any prejudice to the accused as they had the opportunity to explain the circumstances against them in their written statements. The evidence on record justified the conviction of both the accused.
Issues: 1. Whether the trial was vitiated by any legal defect? 2. Whether the charge of falsification of the measurement book infringed the provisions of Sections 233 and 234, Criminal Procedure Code? 3. Whether sanction for the prosecution of Mr. Ghosh, a gazetted railway servant, was required under Section 197, Criminal Procedure Code? 4. Whether permission under Section 196a(2), Criminal Procedure Code, was necessary? 5. Whether the failure of the Magistrate to ask relevant questions during the examination of the accused under Section 342, Criminal Procedure Code, caused any prejudice to the accused? 6. Whether the evidence on record justified the conviction of both the accused?
Ratio Decidendi: 1. The trial was not vitiated by any legal defect as the charge of falsification of the measurement book did not infringe the provisions of Sections 233 and 234, Criminal Procedure Code, as the multiple entries constituted one transaction and not distinct offences. Sanction for the prosecution of Mr. Ghosh, a gazetted railway servant, was not required under Section 197, Criminal Procedure Code, as the Railway Board was not the Provincial Government or the Central Government. Permission under Section 196a(2), Criminal Procedure Code, was not necessary as the conspiracy was to commit an offence punishable under Section 420, Penal Code, and not under Section 417, Penal Code. The failure of the Magistrate to ask relevant questions during the examination of the accused under Section 342, Criminal Procedure Code, did not cause any prejudice to the accused as they had the opportunity to explain the circumstances against them in their written statements. 2. The evidence on record justified the conviction of both the accused.
Final Decision: The High Court dismissed the revision applications of both the accused and upheld their convictions and sentences.
( 1 ) THE railway track of the O. T. R. between miles 1 to 7/4 and 10 to 15 on the Gonda. Bishesharganj branch required repairs and estimates were prepared and work orders placed in august 1947, The estimated coat of the two pieces of work was Rs. 1093/- (vide. Exs. 5 and 7)and Rs. 857 (vide EXS. 4 and 6) respectively. Ram Sewak was given the contract. At that time j. N. Sanyal was the overseer in that section and it was his business to supervise the work. On 25th September 1947, Mr, Indu Bhushan Ghosh was posted as Assistant Engineer at Bahraich and the work then came under his control.
( 2 ) THE work began on 21st December 1947, and was finished on 24th March 1948. It was measured on the 1st, the nth and the 14th April 1948. Since the work was of a patch work nature, the only way to determine how much earth work had been done was to measure the pits that had been dug at the site to extract the earth. The contract exceeded Rs. 500/- and so the measurements ought to have been done by the Assistant Engineer himself under the rules and we find that the entries of the measurements ware entered in Ex. 8, the measurement book, in the handwriting of Mr, Ghosh. Thereafter, again as required by the rules, Mr. Ghosh prepared two bills for the two pieces of work, both of which were also signed by Sanyal and Ram Sewak. The bills were for Rs. 906/8- (EX. 3) and Rs. 897-11-0 (Ex. 2 ). They were sent to the Resident engineer at Gonda, Sardar Bishan Singh, P. W. 3, for his signatures and for payment. Sardar bishan Singh signed them in due course and passed them on for payment.
( 3 ) BEFORE payment could be made, Mr. Shafi of the Anti-Corruption Department, received some information, the source of which is not disclosed that false bills had been prepared. He approached the District Magistrate of Bahraich, who deputed Mr. Kazmi, a Magistrate of the 1st clasp, to check. Sardar Bishan Singh, Resident Engineer of Gonda was also informed and he, Mr. Kazmi, Mr. Shafi and Mr. Indu Bhushan Ghosh, proceeded to the places where the repairs were said to have been carried out to verify the entries in the measurement book. Mr. Sanyal was on leave and so he was not present and Ram Sewak also was not present because he was not informed.
( 4 ) ON checking the measurements, Sardar Bishan Singh found that many pits entered in the measurement book and marked-Exs. 8a to 8x, from which earth was said to have been extracted did not exist at all. Consequently the bills submitted by Mr. Ghosh showed a larger amount of work as having been done than was actually done. The difference was not of petty items but of large amounts. Sardar Bishan Singhs measurements showed that the bill for Rs. 906-8-0, should really have been for Rs. 314-2-0 and the bill for Rs. 867-11-0 should have been for Rs. 274-10-0. Thus in the two bills the differences was Rs. 1215-7-0.
( 5 ) THE case was then handed over to the Police who prosecuted Mr. Ghosh, Sanyal and Ram sewak under Sections 420/511 and 420/120b, Penal Code inasmuch as they were all said to have conspired together to cheat the Railway to the extent of Rs. 623-1-0 and Rs. 592-6-0 by submitting false bills. Mr. Ghosh was further charged under Section 477a, for having falsified the measurement book by making entries 8a to 8x, The prosecution produced four witnesses, P. W. 1, Mr. Henry is Deputy Chief Engineer, O. T. R. He detailed the procedure which has to be followed for preparing and submitting bills for work done and the duties and responsibilities of the Assistant Engineer. P. W. 2, Mr. Tahir Kazmi and P. W. 3, Sardar Bishan Singh deposed to the actual measurements carried out by the latter and the difference which was found between them and those carried out by Mr. Ghosh, P. W. 4, Shri Nand Gopal, P. W. 5, Shri Chhail Behari and P. W. 6, Shri Nand Kishore are formal witnesses.
( 6 ) THE prosecution also produced considerable number of documents to which reference will fee made later.
( 7 ) MR. Ghosh admitted that
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