Full Judgment Text
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PETITIONER:
BANWARI LAL JHUNJHUNWALAAND OTHERS
Vs.
RESPONDENT:
UNION OF INDIA AND ANOTHER(And connected appeals)
DATE OF JUDGMENT:
21/11/1962
BENCH:
DAYAL, RAGHUBAR
BENCH:
DAYAL, RAGHUBAR
SUBBARAO, K.
CITATION:
1963 AIR 1620 1963 SCR Supl. (2) 338
ACT:
Criminal trial-’Every distinct offence’, Meaning of-
Conspiracy-Court trying offence of conspiracy can try all
offences committed in Pursuance of con8piracy-Indian Penal
Code, 1860 (Act 45 of 1860), s. 71, s. 120-B-Code of
Criminal Procedure, 1898 (Act 5 of 1898), s. 233.
HEADNOTE:
A firm having two partners entered into a contract for the
supply of 1306.5 tons of bottom boards for railway wagons of
certain specified varieties of hardwood to the Central
Railwaf
339
Administration. The wood was to be supplied at different
places in different quantities. The firm supplied wood of
inferior quality. Thomson and other officers issued false
inspection notes certifying the quality of the wood to be
according to specification. On the basis of those false
inspection notes, the firm received payment of Rs. 3,77,771.
The accused were charged under ss. 109,120-B and 420 of the
Indian Penal Code and s. 5 (1) (d) read with s.5 (2) of the
Prevention of Corruption Act, and were sent up for trial to
the court of the Special judge Kerala. Charges were also
framed against them. However,the case was transferred by
this court to the court of the Special judge, Poona. The
latter amended certain charges and also added a new charge
against certain appellants. The accused went in revision to
the High Court of Bombay and questioned the legality or
propriety of various charges. The High Court ordered
certain minor modifications in the charges and against that
order both the accused and the Union of India came to this
court by special leave. It was contended ’on behalf of the
accused that the obtaining of money by submitting each
separate bill amounted to one distinct offence for which a
separate charge should have been framed in view of s 233 of
the Code of Criminal Procedure and the charge as framed was
a combination of a number of charges with respect to several
offences of cheating committed by obtaining money on the
presentation of 18 or 19 bills and was, therefore, against
the provisions of s. 233. It was also contended that the
charge of cheating should have been framed against that
partner who had submitted the bill and obtained money.
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Held, that the expression "every distinct offence" in s.
233 Code of Criminal Procedure has a different content from
the expression "every offence" or "each offence" and that
offences would be distinct if they be not in any way inter-
related.
Chunne v. The State, A. I. R. 1954 All. 795, approved.
Held, further that a single charge for the offence of cheat-
ing in pursuance of conspiracy did not contravene the
provisions of s. 233 of the Code of Criminal Procedure. The
conspiracy entered into by the appellants was not for
obtaining diverse amounts by cheating but to obtain the
entire contract money by cheating. The offence of cheating
contemplated by the conspirators was one offence of
obtaining, by cheating, the full amount due under the
contract for the material supplied. While the obtaining of
money by cheating on the presentation of an individual bill
did constitute the offence of cheating, the obtaining of the
entire money in pursuance of the terms of the single
contract and the single conspiracy entered into also
340
constituted the offence of cheating. When the accused could
not be punished for more than one such offence, it could not
be the intention of law that he be charged with each of the
offences which were in a way included in the complete
offence made up- by the entire course of conduct of the
accused in pursuance of the conspiracy.
Bhagat Singh v. The State, [1952] 2 S. C. R. 371,
refered to.
Empress v. Raghu Rai, (1881) A.W.N. 154, Poonit Singh v.
Madho Bhot, (1886) I.L.R. 13 Cal. 270, Joan Subrna v. The
King Emperor, (1905) 10 C. W. N. 320 and Promotha Nath Bay
v. King Emperor, (1912) 17 C. W. N 478, approved.
Both the partners conspired to cheat the Government. The
bills were presumably presented on behalf of the firm, and,
therefore, both the partners were responsible for obtaining
the money on the presentation of the bills. Hence, both of
them were rightly charged.
A court trying an accused for an offence of conspiracy is
competent to try him for all offences committed in pursuance
of that conspiracy irrespective of the fact that any or all
the other offences were committed within its territorial
jurisdiction. The charge framed by the Special judge was
approved.
Purushottam Das Dalmia v The State of West Bengal, [1962] 2
S. C R. 101 and L. N. Mukherjee v. The State of Madras,
[1962] 2 S. C. R. 116, followed.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 11
3, 114 and 190 of 6 1.
Appeals by special leave from the judgment and order dated
June 16, 1961, of the Bombay High Court- in Criminal
Revision Applications Nos. 305 and 345 of 1961.
J. C. Bhatt, J. B. Dadachanji, 0. C. Mathur and Ravinder
Narain, for the appellants (in Cr. A. No. 113161) and
respondents Nos. 1 to 4 (in Cr. A. No. 190 of 1961).
K.R. Chaudhuri, for the appellant (in Cr. A. No. 114/61)
and respondent No. 5 (in Cr. A. No. 190 /61).
341
H. R. Khanna and R. H. Dhebar, for the respondents (Cr.
A. Nos. 113 and 114161) and appellant (in Cr. A. No.
190/61).
1962. November 21. The judgment of the Court was delivered
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by
RAGHUBAR. DAYAL,J.-These three appeals, by special leave,
arise out of a criminal case pending in the Court of the
Special judge, Poona, against the appellants in Criminal
Appeals Nos. 113 and 114.
Banwari Lal Jhunjhunwala and Champalal Jhunjhunwala,
appellants Nos. 1 and 2 in Criminal Appeal No. 113 of 1961,
are partners in a Firm named Shreeram Ramniranjan. The
other two appellants, I. R. Oza and Gajraj Tiwari are the
employees of the firm. V. A. Thomson, appellant in Criminal
Appeal 114 of 1961, was Assistant Works Manager (Timber
Inspection ), Central Railways, Matunga, Bombay, at the
relevant time.
The aforesaid firm entered into a contract with the Director
General of Supplies and, Disposals, New Delhi, in 1955, for
the supply of 1306.5 tons of bottom boards for railway
wagons of certain specified varieties of hard wood, to the
Central Railway Administration. The total cost for the
entire supply was Rs. 3,99,556-8-0. The wood was to be
supplied at three places in different quantities. 630
tons were to be consigned to the District Controller of
Stores, C. W. E., Matunga, Bombay, 26-1/2 tons were to
be supplied to the Assistant Controller of Stores, Lallaguda
and 650 tons were to be supplied to the Assistant Controller
of stores, Jhansi. Prior to the supply, the wood was to be
inspected by the Chief Engineer (Sleeper Passing Branch),
Southern Railway, Madras, or an officer acting for him, and
the places of inspection were Kallayi, Mangalore and
Vallapatnam. The first and the last of the places
342
were in the Kerala State. The payments were to be made by
the Pay and Accounts Officer, Ministry of Works, Housing and
Supply, New Delhi. The procedure to be followed in
obtaining the payment was as follows.
Immediately after despatch, the Constractor could submit his
bill and claim 90% of the price. Along with the bill he had
to attach the first copy of the inspection note. The
balance, viz., 10% of the price, was paid later when two
further copies of the inspection note and certain- other
documents had to be submitted.
Subsequent to the acceptance of the tender, the District
Controller of Stores., Central Railways, C. W. E. Depot.,
Matunga, was also added as the Inspection Authority and
Inspection Officer, for the wood to be supplied to D. C. 0.
S. Matunga. Still later, the Chief Mechanical Engineer,
Central Railways, Bombay, was made the Inspection Authority
and the Assistant Works Manager, Timber Inspection, C. W. E.
Central Railways, Matunga, Bombay, was named as the
Inspecting Officer. The places of Inspection were also
changed to Bombay, Calicut and Baliapatam. The period of
contract was also extended and the total cost of wood to be
supplied was Rs. 4,08,741/-.
The prosecution allegation is that the wood actually
supplied was of interior quality, that Thomson and other
officers issued false inspection notes certifying the
quality of the wood to be per specification and on the basis
of these false inspection notes the aforesaid Firm received
payment of Rs. 3,77,771/- from the Pay and Accounts Officer
in the Ministry of Works, Housing and Supply, Government of
India.
The case against the accused appellants was first sent up to
the Court of the Special judge in
343
Kerala. He framed six charges against the accused. Charge
No. 1 was framed against all the accused and was for an
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offence under s. 120-B I. P. C. Charge No. 2 was against the
two partners of the Firm for an offence under s. 420 I. P.
C. Charges Nos. 3 and 4 were against the two employee-
appellants, for an offence under s. 420 read with s. 109 1.
P. C. Charge No. 5 for a similar offence was against
Thomson. Charge No. 6 was against Thomson for an offence
under s. 5(1)(d) read with s. 5(2) of the Prevention of
Corruption Act. The second charge for the offence under s.
420 I. P. C. was with respect to the Firm obtaining Rs.
1,41,309/- for the supply of 521 tons of timber. Charge No.
6 stated that Thomson abused his position as a public
servant and obtained for the partner-appellants, on behalf
of the Firm, pecuniary advantage.
This Court transferred the case from the Court of the
Special judge, Kerala, to the Court of the Special judge,
Poona. The Special judge, Poona, amended the charges and
also added a 7th charge against the four appellants
connected with the firm for abetting Thomson in his
committing the offence under s. 5(1)(d) read with s. 5(2) of
the Prevention of the Corruption Act. Charge No. 2 was
amended to the effect that the amended charge referred to
the supply of the entire quantity of wood, i.e. 13061 tons
of wood and to the receipt of Rs. 3,77,771 /-. Charge No. 6
was amended, inter alia, to the effect that Thomson, by
abusing his position as public servant obtained advantage
for himself from the partners of the firm. The accused-
appellants went in revision to the High Court of Bombay and
questioned the legality or propriety of the various charges.
The High Court ordered certain minor modifications in the
charges, with which we are not concerned and restricted
charge No. 2 to the supply of 521 tons of wood and to the
receipt of Rs. 1,41,3091- in accordance with the charge
originally framed by the
344
Special judge, Kerala, as the Kerala Court did not have
jurisdiction to try the offence committed in respect of the
supply of wood to places outside its jurisdiction.
The Union of India has filed Criminal Appeal No. 190 of 1961
against the High Court’s order restricting the charge No. 2
to the supply of 521 tons of wood and to the receipt of Rs.
1,41,309/- odd.
The relevant part of the main charge of conspiracy against
all the accused may now be quoted:
"That you all between, July 1955 and
September 1956 at Bombay Baliapatam,
Kannanore, Calicut, Ferok, Kallayi entered
into conspiracy, by agreeing among yourselves
to commit illegal acts and/or acts by illegal
means, to wit, to supply in fulfilment of the
contract bottom boards’ in inferior jungle
wood and not in the species of Aine, Kalpine
and Haldu, as agreed to supply as per contract
and tender., referred to above, to have th
e
said bottom boards fraudulently passed by
accused No. 5, by abusing his position as
public servant by corrupt and illegal means to
get false inspection notes and certificates
from accused No. 5 and others to the effect
that the bottom boards were of the species of
Aine, Kalpine and Haldu as per species and
specifications detailed in the said contract,
when to your knowledge they were not, but were
of inferior jungle wood and which inspection
notes and certificates were issued by accused
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No. 5 by abusing his position as public
servant by corrupt and illegal means to obtain
pecuniary advantage for himself and for others
i.e., accused Nos. 1 and 2; to induce the
Assistant Pay and Accounts Officer in the
Ministry of Works, Housing and Supply to part
with a sum of Rs. 3,77,771/- as value
345
thereof, by claiming in bills, supported with
inspection notes.... which acts amount to offence
punishable under ss. 420/109 of the Indian
Penal Code and section 5(2) of the Prevention
of Corruption Act, 1947, and thereby committed
an offence punishable under s. 120-B of the
Indian Penal Code........
It is contended for the appellants in appeal No. 113 of 1961
that the obtaining of money by submitting each separate bill
amounted to one distinct offence for which a separate charge
should have been framed in view of s. 233 of the Code of
Criminal Procedure and that the charge as framed is a
combination of a number of charges with respect to several
offences of cheating committed by obtaining money on the
presentation of eighteen or nineteen bills and was therefore
against the provisions of s. 233 of the Code. It is also
contended that the charge for cheating should have been
framed against that particular accused who had submitted the
bill and obtained money. The High Court considered these
objections and held that a schedule giving the details of
each item of cheating would sufficiently meet the require-
ments of law and that the bills were presumably signed by
the Firm just as the forwarding letters were and that
therefore both the partners could be properly charged for
the offence of cheating.
The cheating was in pursuance of the conspiracy entered into
between the various accused. The salient features of the
conspiracy were that in pursuance of the contract for the
supply of 1360-1/2 tons of specified wood, inferior wood be
supplied and that for the success of the scheme false
inspection certificates be obtained from the Inspecting
Officers and that such false inspection notes should
accompany the bills purporting to be for the supply of wood
per specifications. The object of the conspiracy was
to .obtain the full contract price from the Government
346
on supplying material inferior in quality from that
undertaken to be supplied under he contract. Naturally, the
entire supply could not be made at the same time even if it
was to be made at one place. Actually the supply was to be
made at three places. The wood inspected at a particular
place of inspection could be distributed to the various
places of supply. The bills could be for the supply made at
the particular time by the Firm to one place alone or to
places more than one. It is therefore obvious that the
conspiracy entered into by the appellants was not for
obtaining diverse amounts by cheating but to obtain the
entire contract money by cheating. This circumstance
justifies the conclusion that the offence of cheating
contemplated by the conspirators was one offence and that
was of obtaining, by cheating, the full amount due under the
contract for the material supplied. The charge framed for
the offence under s. 420 does not contravene s. 233 of the
Code.
There is another way of looking at the same question. The
obtaining. of money for each bill supported by false
inspection note, amounted to the offence of cheating in
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pursuance of the conspiracy. All such individual offences
on the basis ’of the various bills, were of the same kind as
the single offence of obtaining the total amount as a result
of the presentation of the various bills and, in view of s.
71. I. P. C., the accused could not be punished for more
than one of such offences it being provided that "where
anything which is an offence is made up of parts any of
which is itself an offence, the offender shall not be
punished for more than one such offence unless it be so
expressly provided’. Illustration (a) explains this
provision and is :
"A gives Z fifty strokes with a stick. Here A
may have committed the offence of voluntarily
causing hurt to Z by the whole beating, and
347
also by each of the blows which make up the
whole beating. If A were liable to punishment
for every blow, he might be imprisoned for
fifty years, one for each blow. But he is
liable only to one punishment for the whole
beating".
It is to be noted that the whole beating is considered to
constitute one offence while each of the blows also amounted
to the offence of voluntarily causing hurt. It can be said,
therefore, that while the obtaining of money by cheating on
the presentation of an individual bill did constitute the
offence of cheating, the obtaining of the entire money in
pursuance of the terms of the single contract and the single
conspiracy entered into also constituted the offence of
cheating. When the accused could not be punished with the
punishment for more than one such offence, it cannot be the
intention of law that the accused be charged with each of
the offences which were in a way included in the complete
offence made up by the entire course of conduct of the
accused in pursuance of the conspiracy.
Section 233 Cr. P.C. reads
"For every distinct offence of which any per-
son is accused there shall be a separat
e
charge, and every such charge shall be tried
separately, except in the cases mentioned in
sections 234, 235, 236, and 239."
The expression ’every distinct offence’ must have a
different content from the expression ’every offence’ or
"each offence’. A separate charge is required for every
distinct offence and not necessarily’ for each separate
offence.
The question is, what is meant by ’every distinct offence’ ?
’Distinct’ means "not identical.’ It stresses
characteristics that distinguish while the word
348
separate’ would stress the ’two things not being the same.’
Two offences would be distinct if they be not in any way
inter-related. If there be some interrelation, there would
be no distinctness and it would depend on the circumstances
of the case in which the offences were committed whether
there be separate charges for those offences or not.
Such a view has been the basis of certain decisions by the
High Courts and this Court.
In Chunnoo V. State (1) Kidwai J., said atop. 797:
"The use of the word "distinct’ is great
significance and the Legislature having
inserted it, we must, so far as possible, give
it a meaning and not treat it as redundant.
"Every distinct offence’ cannot be treated as
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having the same meaning as ’every offence’ The
only meaning that the word "distinct’ can have
in the context in which it occurs is to,
indicate that there should be no connection
between the various acts which give rise to
criminal liability. If there is such a
connection, one action is not "distinct’ from
other actions and each of them, even if it
constitutes an offence, does not ’constitute a
’distinct’ offence".
In Bhagat Singh v. The State (2 a person hit two others with
a single shot from his gun. Fazl Ali, J., said at p. 375 :
"The word ’offence’ has been defined in the
Criminal Procedure Code as meaning "any act or
omission made punishable by any law for the
time being in force.’ There seems to be
nothing wrong in law to regard the single act
of firing by the appellant as one offence
only. On the other hand, we think that it
would be taking an extremly narrow and
artificial view to split it into two offences.
There are several reported cases in which a
similar view has been
(1) A.I.R. 1954 All. 795.
(1) [1952] S.C.R. 371.
349
taken and, in our opinion, they have not been
incorrectly decided."
We refer to these cases later. It was further
stated at p. 376 :
"’In Sudheendrakumar Ray V. Emperor (I.L.R. 60
Cal. 643) a person who was chased by two
constables had fired at them several times,
but it seems to have been rightly assumed that
the firing did not constitute more than one
offence, though the point was not specifically
raised or decided."
In Empress v. Raghu Rai (1) the accused was convicted of
stealing two bullocks by one act of theft. It was held that
the offence committed was one. The rationale of the
decision could be nothing but that the entire transaction of
stealing or the entire action leading to the theft of the
bullocks was one act and therefore constituted one offence
irrespective of the fact that more than one bullock was
stolen.
In Poonit Singh v. Madho Bhot (2) a person’s furnishing the
police with false information against two persons was held
to result in one offence under s. 182 I. P. C., as the false
statement he had made was one though the information
conveyed by the statement related to two persons.
In John Subarna v. King Emperor (3) a person, who asked the
villagers to pay certain amount per head for signing their
parchas was held to have committed one offence of cheating
as he did not ask each individual villager, but spoke to
them in a body and the contention that he had made as many
attempts to obtain money as there were villagers from whom
he had. sought remuneration was not accepted. In this case
it is clear that the accused’s act aimed at obtaining money
from all the villagers whom he addressed and that act in its
entirely was
(1) (1881) A. W. N. 154
(2) (1886) I. L. R. 13 Cal. 270.
(3) (1905) 10 C. N. 520.
350
held to constitute one offence even though his asking the
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villagers in a body could be said to amount to his asking
each individual villager for the money and thus to
constitute as many offences as there were villagers whom he
asked.
In Promotha Natha Ray v. King Emperor one charge was framed
under s. 406 I. P. C., with respect to dealing with several
books of accounts. It was held that the books formed one
set of account books of the estate, were found together in
two locked boxes the keys being with the appellant, and that
therefore they may be fairly regarded as one item of
property with which the appellant was dealing in one
particular way. It was not accepted that a seperate offence
was committed with respect to each of the books.
We therefore hold that a single charge for the offence of
cheating in the circumstances of the case, does not
contravene the provisions of s. 233 of the Code.
This view also disposes of the other objection with respect
to charge no. 2, it being that with respect to the cheating
constituted by the obtaining of money on each bill, only
that partner should have been charged for that offence who
had actually signed that bill. Both the partners conspired
to cheat the Government. The bills were, as held by the
High Court, presumably presented on behalf of the Firm and
therefore both the partners would be responsible for the
obtaining of the money on the presentation of each bill.
The charge therefore does not suffer from any defect on this
account.
The main contention in the appeal by Thomson is that the
Special judge, Poona, was not competent to amend the charge
No. 6 to the effect that Thomson, by abusing his position as
a public
(1)(1912) 17 C. W. N. 479.
351
servant, had obtained pecuniary advantage for himself, as
the sanction given for the prosecution of Thomson did not
state that he had abused his position for his personal gain.
We do not wish to express any opinion on the merits of this
contention as it is still open to the prosecution to lead
evidence to the effect that the sanction given for the
prosecution was based on facts which referred to his ob-
taining money for himself It may also be open to the
prosecution to urge that it is a matter of inference from
the alleged conduct of Thomson that he obtained benefit for
himself. Suffice it to say that the trial of Thomson for
the charge as framed at present is not illegal.
It has been held by this Court in Purushottam Das Dalmia v.
The State of West Bengal (1) and L. N. Mukherjee v. The
State of Madras (2) that a Court trying an accused for an
offence of conspiracy is competent to try him for all
offences committed in pursuance of that conspiracy
irrespective of the fact that any or all other offences were
not committed within its territorial jurisdiction. The
special judge, Poona, could try the appellants with respect
to the offence of cheating and abetment thereof in connect-
ion with the supply of wood to places outside Kerala and for
the obtaining of the price of that wood. The charge No. 2
as framed by the Special judge is correct. The order of the
High Court restricting the charge to the obtaining of Rs.
1,41,309/- only for the supply of 521 tons of wood is wrong.
In the result, we dismiss Criminal Appeals Nos. 113 and 114
and allow appeal No. 190 of 1961.
Cr. A. Nos. 113 and 114 dismissed.
Cr. A. No. 190 allowed.
(1) [1962] 2 S. C. R. 101. (2) [1962] 2 S. C. R. 116.
352
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