JUDGMENTBY: POYSER, CJ, MCELWAINE, CJSS, & TERRELL, JA

was as follows:--

The appellant was tried on ten charges falling into three groups, two of three charges and one of four charges:--

A. Criminal breach of trust of$ 100.40 on 26th January, 1938, and

two subsidiary charges of falsification of two books

of account on the same date.

B. Criminal breach of trust of $ 450 on 26th February, 1938, and

two subsidiary charges of falsification of two books of account

on the same date.

C. Criminal breach of trust of$ 807.83 on 19th April, 1938, and

two subsidiary charges of falsification of two books of account

and one of forgery on the same date.

He was convicted on each of the criminal breach of trust charges and on the forgery charge and was sentenced to six months R.I. on each of the four charges, the sentences to run consecutively. He was acquitted on the six falsification charges.

He appealed on fact and on law.

He alleges that the conviction was bad by reason of misjoinder of charges. If there was misjoinder, then however immeritorious the point is, the conviction must be quashed-- Subrahmania Ayyar v Emperor ILR 25 Mad 61.

In each of the three groups the subsidiary offences were acts or omissions to implement or to conceal the criminal breach of trust.

Section 163 of the Criminal Procedure Code enacts that every distinct offence shall be tried separately except in the cases mentioned in sections 164, 165, 166 and 170.

Section 164 (i) enacts that when a person is accused of more offences than one of the same kind committed within the space of twelve months he may be charged with and tried at one trial for any number of them not exceeding three.

We pause to observe that under section 153 (ii) the criminal breaches of trust might have been lumped together and the accused might have been charged in one charge of having committed criminal breach of trust of $ 1,358.25 between 1st May, 1937, and 30th April, so the three specific charges are less embarrassing.

Section 165 (i) enacts that if in one series of acts so connected together 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.

Section 166 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 any number of such charges may be tried at once, or he may be charged, in the alternative, with having committed some one of the said offences.

It was conceded that all the offences in any one of the three groups could be separately charged and tried together under section 165, they being in the same transaction ( Sheikh Hassan v. P. P., Negri Sembilan Criminal Appeal No. 10 of 1939--unreported) but it was contended that the groups could not be charged together.

This contention amounts to this, that the exceptions mentioned in section 163 are mutually exclusive and not cumulative.

Indian decisions on the point are not uniform. On the one hand, we have such cases as Emperor v Jiban Kristo Bagchi ILR 40 Cal 318, on the other Emperor v Tribhovandas Purshottamdas Mangrole-Walla ILR 33 Bom 77 and In re Tilak ILR 33 Bom 221.

In the former it was held that four charges, two under section 124A of the Penal Code and two under section 153A of the same Code could be tried together. In Tilak there were also two charges under each of these sections.

Before the trial commenced both the Crown advocate and the judge doubted whether the four charges could be tried together, so one was dropped and the accused was tried and convicted on two charges under section 124A and on one under section 153A.

He applied for leave to appeal to the Privy Council on the ground (among others) that these three charg

Click Here to Read the rest of this document