Poyser CJ:

Subrahmania Ayyar v. Emperor ILR 25 Mad 61.

Emperor v. Jiban Kristo Bagchi ILR 40 Cal 318.

Kasi Viswanathan v. Emperor ILR 30 Mad 228.

Raman Behary Das v. Emperor AIR [1915] Cal 296.

Krishna Lal Mitra v. Emperor AIR [1927] Cal 946.

Emperor v. Sheo Saran Lal ILR 32 All 219.

Lim Tain Chye v. PP 1 FMSLR 228.

TD Wallace DPP, for the respondent:

There was no misjoinder as ss. 163 and 164 are not mutually exclusive - see Lim Tain Chye v. PP 1 FMSLR 228.

The charges were preferred in this form so as to assist the appellant in the conduct of his defence.

Charges 1, 4 and 7 have only particularized the various amounts alleged to have been converted and could have been included in one charge [s 153 (ii) Criminal Procedure Code (Cap. 6)]. Charges 2, 3, 5, 6, 8 and 9 could have been included in one charge with particulars - Sheikh Hassan v. PP (Negri Sembilan Criminal Appeal No. 10 of 1939 - unreported).

The object of the provisions is to avoid prejudice and that was the very object that was intended by particularizing the charges.

Ramani, in reply:

If there were no answer to one charge, it would prejudice the trial of the other charges. Sheikh Hassan's case is the converse of the present case: there accused was charged properly on a cumulative charge.

Section 153 (ii) relates only to criminal breach of trust, not to other subsidiary charges.

The Judgment of the Court of Appeal (Poyser CJ, McElwaine CJ SS, & 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 26 January 1938, and two subsidiary charges offalsification of two books of account on the, same date.

B. Criminal breach of trust of $450 on 26 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 19 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 RI 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 ss. 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 s. 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 1 May 1937, and 30 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 of