State of Andhra Pradesh vs Cheemalapati Ganeswara Rao and Anr

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 39 of 1961

Decision Date: 23 April 1963

Coram: J.R. Mudholkar, Raghubar Dayal

The matter before the Supreme Court involved a criminal prosecution instituted by the State of Andhra Pradesh against Cheemalapati Ganeswara Rao and another accused. The judgment was delivered on the twenty‑third day of April, 1963. The case was heard by a bench comprising Justice J. R. Mudholkar, Justice Subbarao, and Justice K. Dayal, who also authored the report. The official citation of the decision is 1963 AIR 1850 and it appears in the 1964 volume of the Supreme Court Reports at page 297. The issues in the case related to provisions of the Criminal Trial‑Joinder of charges and persons, Conspiracy, examination of accused, the right of an accused to examine himself as a witness, the legality of a pardon granted to an approver, the permissibility of refreshing an approver’s memory by reference to documents, and the admissibility of certain account books that lacked entries of alleged payments. Relevant statutory provisions cited included sections 233 to 339, 342, 337, 529, and 537 of the Code of Criminal Procedure, 1898, and sections 5, 11, 34, 159, and 160 of the Indian Evidence Act, 1872.

The headnote of the judgment explained that two accused, designated as A and B, were tried together in a single proceeding. Accused A faced charges under sections 120‑B, 409, 477‑A and 471 read with section 476 of the Indian Penal Code, while accused B was charged under sections 120‑B and 409 read with sections 109, 298 and 471 read with section 467 of the same code. The Sessions Judge convicted accused A of every offence alleged and convicted accused B of the first two charges. Upon appeal, the High Court set aside both convictions and acquitted the accused. The State then appealed to the Supreme Court. The respondents raised several objections: (i) that the charges and the persons had been improperly joindered because of the cumulative application of the various clauses of section 239 of the Code of Criminal Procedure, which they claimed was impermissible; (ii) that a charge of conspiracy could not be framed after the conspiracy had already produced its fruits; (iii) that the Sessions Judge had failed to inform the accused of their right under clause 3, section 342(4) of the Code to examine themselves as witnesses; (iv) that a pardon granted to the approver was illegal; (v) that the approver had been improperly allowed to refresh his memory by reference to documents while being examined; and (vi) that the account books of certain firms, which showed no entries for the payments alleged to have been made, should be excluded as evidence.

The Supreme Court held that there was no mis‑joinder of charges or of the accused persons. It observed that a court may simultaneously invoke the different clauses of section 239 of the Code for the purpose of framing charges, and that sections 233 to 236 do not override the provisions of section 239. Moreover, sections 234 to 236 may also be applied in a joint trial of several persons where such a trial is permissible under section 239. The Court further noted that even if a mis‑joinder had occurred, the High Court lacked authority to set aside the convictions unless it could conclusively demonstrate that the mis‑joinder had caused a failure of justice. The judgment also referenced earlier authorities, including the decision in Fankaralapati Gopala Rao, A.I.R. 1936 Andhra 21, and T. B. Mukherji, to support its reasoning.

In considering the issues, the Court cited several earlier decisions. It referred to the case reported in the All India Reporter in 1954 at page 501, which it noted was not approved. The Court also mentioned State of Andhra Pradesh v. Kandimalla Subbaiah, found in the 1962 volume of the Supreme Court Reports at page 194, and it relied on K.V. Krishna Murthy Iyer v. State of Madras, reported in the South‑Central zone of the All India Reporter in 1954 at page 406. Further authorities included Willi (William) Slaney v. State of Madhya Pradesh, reported in the 1955 second volume of the Supreme Court Reports at page 1140, and Birichh Bhuian v. State of Bihar, reported in the 1964 supplementary second volume of the Supreme Court Reports at page 328. After enumerating these authorities, the Court explained that where offences are committed in pursuance of a conspiracy, the law permits the prosecution to charge the accused both with the substantive offences and with the separate conspiracy offence. It emphasized that conspiracy constitutes an entirely independent offence; therefore, even though other crimes arise from the conspiracy, the liability of the conspirators for the conspiracy itself does not disappear. The judgment specifically relied on State of Andhra Pradesh v. Kandimalla Subbaiah (1962 2 S.C.R. 194) and also referenced S. Swamirathnam v. State of Madras (1957 S.C.R. 340) as well as Natwarlal Sakarlal Mody v. State of Bombay, Criminal Appeal No. 111 of 1959, dated 19 January 1961, to support this principle.

The Court then turned to the procedural aspects concerning the accused’s right to be examined under section 342 of the Code of Criminal Procedure. It held that no violation of that provision occurred in the present case. While the Sessions Judge had been overly cautious by presenting every circumstance appearing in the evidence to the accused, the Court observed that copies of all questions intended for the accused had been supplied to them in advance. Any matters not covered by those questions were addressed in the written statements already filed by the accused, so the length or detail of the questioning could not prejudice the defence. Moreover, the Court found that it was not incumbent upon the trial court to specifically inform the accused of their right under clause (4) of section 342 to examine themselves as witnesses, because the accused were represented by counsel who would have been aware of that statutory right. Regarding the approver’s pardon, the Court held that the pardon granted under section 337 of the Code was legally valid. It noted that every offence with which the accused were charged fell within the class of offences for which a pardon may be issued under clause (1) of section 337. Specifically, the offences under section 467 read with section 471 were exclusively triable by a Sessions Court, the offence under section 477‑A was expressly mentioned in section 337 (1), and both therefore fell within the ambit of section 377 (1). The offence under section 409, as well as the offence under section 120‑B, were punishable by life imprisonment or imprisonment not exceeding ten years; consequently, they qualified as “offences punishable with imprisonment which may extend to ten years” within the meaning of section 337 (1). The Court further referred to Government Order No. 3106 dated 9 September 1949, issued by the Madras Government, which expressly conferred on Additional District Magistrates the power to grant pardons. Accordingly, the Additional District Magistrate (Independent) who granted the pardon in the present case was competent to do so. Finally, the Court affirmed that the Sessions Judge acted lawfully by allowing the approver to refresh his memory during testimony by referring to the account books and other documents that had been produced as evidence in the trial.

The Court observed that a witness was required to give testimony concerning a large number of transactions that were mentioned in the account books or other documents. The Court held that there was no objection to permitting the witness to refer to those account books and documents while answering questions. The Court noted that this allowance is expressly authorized by sections 19 and 160 of the Evidence Act, which permit reference to documents during examination. The Court further held that the firms’ account books, showing no entries for the alleged payments, were not relevant under section 34 of the Evidence Act, because that section applies only to regularly kept entries and does not address missing entries. However, the Court found that those same books were relevant under section 112 of the Act because the absence of entries contradicted the receipt of amounts, which was a material fact in dispute. The books were also relevant under section 5, as they helped prove the prosecution’s allegation that payments were never made to the firms and that the firms kept their accounts in the course of business. The Court referred to the authorities Queen Empress v. Grees Chander Banerjee (1884) I.L.R. 10 Cal 1024 and Ram Pershad Singh v. Lakhpati Koer (1902) I.L.R. 30 Cal 231. The judgment belonged to the criminal appellate jurisdiction in Criminal Appeal No. 39 of 1961, filed by special leave under Article 136 of the Constitution.

The appeal challenged the judgment and order dated 30 January 1960 of Andhra Pradesh High Court, which had decided Criminal Appeals Nos. 277 and 278 of 1957 and Criminal Revision Case No. 810 of 1957. Counsel for the appellant included A.S.R. Chari, K. R. Choudhry and P. D. Menon, while counsel for respondent No. 1 were Bhimasankaran and R. Thiagarajan, and counsel for respondent No. 2 was R. Mahalingier. The judgment was delivered on 23 April 1963 by Justice Mudholkar, who presided over the Supreme Court hearing of the appeal. Respondent No. I had been tried before the Sessions Court at Visakhapatnam for offences under section 120‑B of the Indian Penal Code, section 409, section 477‑A and section 471 read with section 467, IPC. Respondent No. 2 had been tried for an offence under section 120‑B and for offences under sections 409 read with section 109, section 477‑A and section 471 read with section 467, IPC. Both respondents were convicted of the first two offences, but only respondent No. I was convicted of the additional two offences. The Additional Sessions Judge of Visakhapatnam thereafter imposed various sentences against both respondents in accordance with the convictions recorded against them. The respondents subsequently filed appeals before the High Court, seeking to set aside their convictions and the sentences imposed upon them. The State, on the other hand, filed an application for revision under section 439 of the Criminal Procedure Code, seeking enhancement of the sentences awarded to the respondents. The High Court allowed both appeals, acquitted the respondents of all charges, and dismissed the State’s application for revision. The State of Andhra Pradesh then approached this Court by obtaining special leave to appeal the High Court’s order. The prosecution’s case, insofar as it was material, formed the foundation for the further discussion and analysis presented by the Court.

For the purpose of deciding this appeal, the Court set out the historical facts concerning the Andhra Engineering Co., which had originally been organized as a partnership by D L N Raju. In 1929 that partnership was converted into a private limited company that was headquartered in Visakhapatnam; the Court referred to this entity as the AECO for the remainder of the narrative. The AECO obtained licences from the Government under the Electricity Act that authorized the supply of electrical energy to the towns of Visakhapatnam, Anakapalli and several other localities. Because the AECO lacked sufficient capital to carry out the supply work itself, D L N Raju established, in 1933, a public limited company named Visakhapatnam Electric Supply Corporation Ltd., which the Court abbreviated as VESCO, and subsequently, in 1936, founded another public limited company called the Anakapalli Electric Supply Corporation Ltd. The AECO transferred its licence for the Visakhapatnam consumers to VESCO and, conversely, transferred the licence for the Anakapalli consumers to the AECO. Under separate agreements the AECO was appointed as the Managing Agent of each of these corporations. Later, additional industrial enterprises—including Andhra Cements Ltd., a company in Vijayawada, and East Coast Ceramics in Rajahmundry—were reportedly started by Raju, and the AECO was likewise designated as the Managing Agent for those concerns.

The original managing‑agency agreement granting the AECO authority over VESCO was for a fifteen‑year term, running from 1933 to 1948, and it was subsequently renewed for the balance of the licence period granted by the Government under the Electricity Act. The Court noted that in June 1952 the VESCO undertaking was acquired by the Government pursuant to the Electricity Undertaking Acquisition Act, although this acquisition did not affect the matters before the Court. Each of the two companies, VESCO and the AECO, maintained its own Board of Directors. VESCO did not have a Managing Director; instead, at every meeting of its Board a Director was elected as Chairman, and the same procedure was followed in meetings of its shareholders’ general body. By contrast, the AECO consistently had a Managing Director. The first Managing Director was D L N Raju, who died in 1939. He was succeeded by R K N G Raju, an advocate from Rajahmundry. The Court observed that the successor did not relocate to Visakhapatnam after assuming the office but remained largely in Rajahmundry.

The prosecution contended that both the AECO and VESCO had operated smoothly and efficiently during the lifetime of D L N Raju because he personally supervised their affairs. After his death, however, the prosecution argued that the new Managing Director, while still residing chiefly in Rajahmundry, became involved in several other enterprises, including a sugar factory at Dewas in Central India, many of which later failed. The prosecution further asserted that the second Raju failed to give adequate care and attention to VESCO’s affairs. In 1939, acting as Managing Agents of VESCO, the AECO appointed D V Appala Raju as its representative and as the secretary of VESCO.

The court noted that the AECO had previously appointed a trusted employee to act as its representative and as secretary of VESCO. In 1944 that employee resigned from both positions and established a private enterprise dealing in radio and electrical merchandise, operating under the name D. Brothers. Following his resignation, the AECO filled the vacancy by appointing T. Visweswara Rao, bearing the pay‑scale grade P.W. 6, who was already an employee of the AECO. The court further observed that the first respondent, Ganeswara Rao, was likewise a long‑standing employee of the AECO. He had been taken on as a stenotypist in 1923 with an initial monthly salary of Rs 40, and over time he rose to the position of Head Clerk within the organization. The first respondent later pressed for appointment as Secretary of VESCO and as the resident representative of the Managing Agents at Visakhapatnam; R.H.G. Raju subsequently appointed him to those two posts, a fact that was not contested by any party. The court recorded that, even after assuming the two VESCO‑related posts, the first respondent continued to remain employed by the AECO, whose business by that stage was limited to acting as Managing Agent for the four companies originally established by D.L.N. Raju. According to the prosecution, in his dual capacity as Secretary of VESCO and resident representative of the Managing Agents, the first respondent attended to the daily operations of VESCO. His duties included receiving all sums of money due to VESCO, disbursing funds for VESCO’s purposes, overseeing the appointment, supervision and control of VESCO staff, purchasing materials required for VESCO’s activities, and supervising VESCO’s accounts. The prosecution emphasized that his role was therefore central to the everyday affairs of VESCO. By holding both positions, the first respondent gained the confidence of the directors of both the AECO and VESCO. The accounts of VESCO were explained by him not only to the directors but also to the shareholders, and the shareholders’ understanding of VESCO’s financial condition derived essentially from the information he provided. As Secretary of VESCO, his obligations extended to convening meetings of the Board of Directors, presenting periodic statements of receipts and expenditures to the Board, convening meetings of the General Body, preparing the Managing Agents’ report and the directors’ report, and ensuring the presentation of the auditors’ report together with the statement of accounts. He also presented the explanations of the Managing Agents and the directors regarding items mentioned in board orders to the shareholders. Moreover, it was his duty to cause VESCO’s accounts to be audited by auditors elected by the General Body and to produce to those auditors all relevant accounts, vouchers, bank statements and related documents. The court observed that there were no complaints concerning the management of either VESCO or the AECO up to the end of 1946 or the beginning of 1947. Nevertheless, the prosecution referred to one significant fact that had occurred prior to 1946. The prosecution further noted that until the year 1945 Messrs C. P. Rao & Co., a firm of Chartered Accountants, served as auditors of VESCO, after which a new auditor, B. Rajan, was elected not only for VESCO but also for the other four concerns, including the AECO.

In this case the Court recorded that the firm of Chartered Accountants C. P. Rao & Co. had acted as auditors of VESCO, but after the appointment of respondent No I as Secretary, the auditor position was filled by B. Rajan, who was made auditor not only of VESCO but also of the other four concerns, including AECO. The Court noted that the same B. Rajan also served as auditor for the Greenlands Hotel at Visakhapatnam, a hotel in which respondent No I sat as a Director. The Court further observed that R.K.N.G. Raju continued in his role until toward the end of 1947 and that he died in Madras in April 1948.

The prosecution alleged that respondent No I sought to exploit this situation by devising a scheme to misappropriate as much money as possible belonging to VESCO before the managing‑agency agreement of AECO terminated in October 1948. According to the prosecution, respondent No I obtained the promotion of the approver K.V. Ramana, who had originally been an Accounts Clerk, to the post of Senior Accountant. In a similar manner, K.V. Gopala Raju was transferred from the position of Stores Clerk to the general department, and the discharged accused K.S.N. Murty was appointed as Stores Clerk in his place. Subsequently, Murty was also transferred to the general section and was replaced by P.W. 18, Srinivasa Rao, who had previously been a stores boy.

The Court stated that the approver who had begun as an Accounts Clerk with AECO was appointed a cashier in VESCO in 1946 at the instance of respondent No I, thereby becoming indebted to him. That approver was later promoted to Senior Accountant, and in his place respondent No 2, Lakshminarayana Rao, was appointed as cashier. The prosecution contended that respondent No I brought both the approver and Lakshminarayana Rao, together with several other persons described as “known and unknown,” into his confidence in order to carry out the alleged misappropriation of VESCO funds during the period when AECO acted as managing agency.

The Court noted that the conspiracy was said to have been devised in 1947, with falsification of accounts and misappropriation of VESCO funds continuing until the close of that accounting year. The managing‑agency term had been renewed in 1943, and AECO remained the managing agent until VESCO was taken over by the Government in 1952. Throughout the alleged conspiracy respondent No I continued to serve as Secretary of VESCO and as the resident representative of the managing agents.

After the death of R.K.N.G. Raju, the Court recorded that it was discovered that AECO owed money to many concerns that were under its management, the liability being shown either as that of AECO or as a personal liability of R.K.N.G. Raju. The Court also noted that VESCO was shown as indebted to Andhra Cement for the sum of Rs. 42,000, an amount that AECO later paid out of VESCO’s own funds. Finally, the prosecution alleged that respondent No I and several of his associates sought a wealthy and compliant individual to fill the post of Managing Director of AECO. Their search eventually settled on G.V. Subba Raju, P.W. 25, a resident of Manchili, who owned a large number of AECO shares and was related by marriage to R.K.N.G. Raju.

In this case, the person chosen to become Managing Director of AECO was a man who owned a large number of AECO shares and who was related to R K N G Raju by marriage. He had received very little formal education and knew only how to sign his name in English. He was told that, by agreeing to serve as Managing Director, he would not be required to perform any onerous duties and that respondent No I would attend to all matters of VESCO. He was further assured that, apart from signing important documents that might be sent to him by respondent No I from time to time, he would have no work to do. Accepting these assurances, he agreed to the appointment and was elected Managing Director of AECO in the middle of 1948. Under this arrangement, VESCO collected large sums of money from high‑tension power consumers such as the railways, K G Hospital, the Port Administration and Andhra University by cheque. Domestic consumers usually paid their bills in cash to bill collectors, who then handed the collections to respondent No 2. Respondent No I instructed respondent No 2 to keep a private notebook in which payments made by respondent No 2 on the basis of slips issued by respondent No I—payments that included amounts to his own relatives or to business firms in which he had a personal interest—were recorded and totalled at the end of each day. The total recorded in this notebook was entered in VESCO’s Cash Handover Book under the heading “by safe,” indicating that the amount was kept in the safe, although in fact it was not. The final accounts of VESCO were prepared on the basis of the entries in the Handover Book. Respondent No I also opened four personal bank accounts in different banks, including the Imperial Bank of India (which was then known as the State Bank). Whenever he issued a personal cheque drawn on any of these banks, he asked respondent No 2 to send an equivalent amount to the respective bank for credit to his personal account; these transfers were likewise noted in the private notebook and entered as “by safe” in the Handover Book. In addition, respondent No I created a ledger heading called “advance purchase of materials” where misappropriated amounts were posted, even though no actual orders for material were placed. Subba Raju visited Visakhapatnam twice a month to inspect the account books. During these visits he was told that the sums shown as being in the safe but actually missing had been deposited in the bank. Apparently Subba Raju was fully satisfied with this explanation and, therefore,

In this case, the Court recorded that the respondent appointed C. S. Raju, who held the position of Manager of Andhra Cements, to supervise the affairs of VESCO. Following this appointment, the respondents adopted a new scheme for misappropriating funds by creating a “suspense account” in the VESCO account books. Approximately one lakh rupees moved through this suspense account, and amounts that had been misappropriated were regularly entered into it. The conspirators also prepared a new cash book with the purpose of concealing those misappropriations. Subba Raju expressed dissatisfaction with the supervision carried out by C. S. Raju, observing that Raju inspected only the cash‑book entries on the days he visited the VESCO office after giving prior notice. In addition, the Court noted that C. S. Raju’s management of Andhra Cements had resulted in a loss of Rs. 30,000/-. Consequently, towards the end of 1951, the respondent replaced C. S. Raju with Subbaramayya, a retired Finance Officer of the Madras Electricity Board, appointing him both as a Director of Andhra Cements and as a supervisor of VESCO’s accounts. Subbaramayya approached his duties diligently and sought information on several matters from respondent No. 1, but he was unable to obtain any answers. In January 1952, Subbaramayya engaged S. G. Krishna Aiyar, who possessed extensive experience in the accounts of electrical undertakings and had previously served as Chief Accountant of the South Madras Electric Supply Corporation, to conduct an investigation and to act as financial adviser. The Court further recounted that on 29 November 1951 a meeting of the General Body was convened to consider, among other items, the accounts. During that meeting a considerable disturbance arose because respondent No. 1 claimed that the auditor’s report had not been received, whereas the shareholders asserted that the report had been received but was being suppressed or deliberately withheld. The meeting was therefore postponed and finally held on 9 December 1951, when respondent No. 1 produced the auditor’s report (Exhibit p. 234, with Exhibit p. 235 being a printed copy). The prosecution alleged that this report was a forged document, a view shared by several shareholders who demanded to see the original; however, the Chairman of the meeting, Dutt, after examining Exhibit p. 234, opined that the report appeared genuine. After his appointment in January 1952, S. G. Krishna Aiyar conducted a thorough inquiry and submitted an interim report. That interim report revealed that during the fiscal year 1948‑49 an amount of Rs. 33,271‑10‑0, which was shown as having been paid to the Andhra Power System, had in fact not been paid. When asked to explain this discrepancy, respondent No. 1 stated that he would provide an explanation to the Managing Director. The interim report also indicated that there was a shortfall of approximately Rs.

The Court recorded that the shortfall for the period under consideration amounted to ninety thousand rupees. On 12 February 1952 the first respondent wrote to the Managing Director, acknowledged his liability for the deficiency and undertook to restore the amounts that were found to be short, or any other sums that might be discovered as short, by the end of March 1952. Subsequent detailed examination of the accounts was undertaken by Mr. S. G. Krishna Aiyar. In a later report he identified that two hundred thirty‑eight thousand rupees, which had been shown in the books as having been paid to the Andhra Power System, in fact had not been remitted. In April 1952 the Collector consequently attached the properties of VESCO in order to realise that outstanding sum. On 30 April 1952 the first respondent, having sold part of his own property, personally paid fifty thousand rupees to the Andhra Power System toward the amount owed by VESCO and gave an assurance that the remaining balance would be paid shortly thereafter. Although he was granted additional time to make the balance payment, he failed to do so. Following this failure, the directors of VESCO authorised one of their directors, K. S. Dutt, to lodge a police complaint, which he filed on 19 May 1952. The very next day police officers placed an armed guard around the office of the first respondent and seized a number of documents. The investigation that ensued uncovered a total misappropriation of three hundred forty thousand rupees. A chargesheet was filed on 13 May 1954 against both respondents, as well as against an individual named Murti and the approver Ramana. On 13 September 1954 Ramana offered to make a full confession to the Additional District Magistrate (Independent), who was empowered to grant pardon under section 337 of the Code of Criminal Procedure. The magistrate, however, directed Ramana to make his confession before a Sub‑Magistrate. Accordingly, Ramana made his confession on 15 November 1954, and on 17 November 1954 the Additional District Magistrate (Independent) granted him a pardon, after which Ramana was examined as a witness in the present case. The Additional Sessions Judge had convicted both respondents; the first respondent was found guilty on each count of the offences with which he was charged, while the second respondent was convicted only of the offences of conspiracy and misappropriation. The High Court set aside those convictions on several grounds. Firstly, the High Court held that a joint trial of two or more persons for different offences committed by each of them is impermissible, and because the respondents were charged with offences under sections 120‑B, 409, 477‑A and 476/467 of the Indian Penal Code, they could not be tried together. The Court further observed that the provisions of section 239 were inapplicable. Secondly, even assuming the applicability of section 239, the High Court ruled that its provisions are subject to those of section 234, rendering a trial for more than three offences unlawful. Thirdly, the High Court noted that offences punishable under sections 409 and 471/467 are of a different nature and cannot be considered as having been jointly committed.

The High Court observed that offences of different kinds cannot be committed together and therefore could not be tried jointly. It further held that when a conspiracy has produced its intended result, the conspirators may be charged with the actual offences they have committed, but a charge of conspiracy is valid only if the prosecution proves that each conspirator expected to obtain a personal benefit from the plan. The Court found that the prosecution had failed to demonstrate that respondent No. 2 or the approver had any such expectation, because neither of them actually received any corresponding benefit. Regarding respondent No. 2, the Court stated that because he was charged with a specific offence under section 409 of the Indian Penal Code, he could not be convicted merely for abetting that offence. The Court declared the approver’s testimony inadmissible on the ground that the pardon granted to him was illegal. In addition, the Court found the approver’s evidence to be unreliable and censured the Additional Sessions Judge for permitting the approver to refresh his memory by referring to various documents in a manner that violated section 159 of the Evidence Act. The Court also noted that the Additional Sessions Judge had admitted evidence that was inadmissible, specifically the account books of Billimoria Brothers kept in Gujarati, and had erred in allowing the prosecution to use those books to infer the absence of entries concerning certain payments that the VESCO books alleged had been made to the brothers. Finally, the High Court concluded that the examination of the respondent under section 342 of the Code of Criminal Procedure was unfair for several reasons, emphasizing that the Additional Sessions Judge failed to perform his duty of informing the accused of the provisions of section 342 that permit an accused to give evidence on his own behalf.

Mr. Bhimasankaram, appearing for the two respondents, did not seek to support every point raised by the High Court. He advanced five principal contentions. First, he argued that there was a misjoinder of charges and persons because the various provisions of section 239 had been combined and an omnibus charge of conspiracy had been framed, a charge that on its face was likely to embarrass the respondents and render their defence difficult. Second, he contended that the procedures followed during the investigation and committal stages were irregular. Third, he maintained that irrelevant evidence had been introduced and that some evidence had been admitted in a manner not authorized by the Evidence Act. Fourth, he asserted that the Court had abused its powers under section 342 of the Criminal Procedure Code while conducting the examination of the respondents. Fifth, he argued that the approver’s evidence was inadmissible because the pardon granted to the approver was illegal and, even if the pardon were valid, the evidence remained unreliable.

In this case the Court observed that the approver’s testimony had been rejected by the Sessions judge, and therefore the Court also had to reject it. The Court noted that if the approver’s evidence were excluded, the remaining evidence would be insufficient to support the prosecution’s case. The Court then proceeded to address the contentions raised by counsel for the respondents in the order they had been presented. The first issue for consideration was whether there had been a misjoinder of parties and of persons. The first charge alleged a conspiracy by the two respondents, K. V. Ramana as the approver, and other persons, known and unknown, to commit criminal breach of trust of the funds of VESCO, to conceal the offence by falsifying VESCO’s accounts, and to pass off forged documents as genuine. The Court found that, on its face, this charge was valid, although certain objections to it would be examined later. The second charge concerned an offence of criminal breach of trust punishable under section 409, accusing the two respondents together with Ramana of misappropriating sixty‑nine items amounting to a little over Rs 3,20,000/‑. The charge disclosed that some of the misappropriated amounts occurred between April 1947 and March 1950, others between April 1947 and March 1949, still others between April 1947 and March 1951, a large number between September 1947 and March 1950, and another large number between April 1951 and March 1952. Consequently the Court observed that offences committed within a twelve‑month period were being tried together with offences committed outside that period, and that, unless the provisions of section 239 applied, this situation indicated a misjoinder of charges. The third charge alleged that the two respondents, together with the approver Ramana, made false entries on seven separate dates in the account books between 19 September 1947 and 18 March 1952, thereby committing an offence under section 477‑A of the Indian Penal Code. The fourth charge alleged that the two respondents and Ramana forged six documents on different dates between 28 March 1949 and 12 November 1951, constituting an offence under section 471 read with section 467 of the Indian Penal Code. The Court pointed out that respondent No. I alone had been convicted by the Additional Sessions judge of the third and fourth charges. Counsel for the respondents endorsed the High Court’s conclusion that a misjoinder of charges existed. The High Court’s reasoning rested principally on two grounds: first, that the various clauses of section 239 could not be clubbed together; and second, that the respondents were charged with more than three offences of the same kind, which contravened subsection (c) of section 239. The Court noted that the High Court had relied upon the decision in Re Vankavalapati Gopala Rao to hold that the clauses of section 239 are mutually exclusive and cannot be applied cumulatively.

In that earlier case, the Court referred to the decision in Re Vankavalapati Gopala Rao (A.I.R. 1956 Andhra 21) and quoted the learned judges as saying that the clauses of section 239 were mutually exclusive, could not be applied together, and that construing them as supplementing each other would enlarge the scope of the exceptions. The Court observed that each clause was an exception to the general rule set out in section 233 of the Code of Criminal Procedure, and that permitting a combination of the clauses would allow persons accused of offences described in clauses (a) to (g) to be tried together in a single case, creating a bewildering multiplicity of charges and nullifying the protective principle embodied in section 233. To support this view, the High Court relied on the decision in T B Mukherji v State (A.I.R. 1954 All. 501), referred to Singarachariar v Emperor (A.I.R. 1934 Mad. 673) and D K Chandra v State (A.I.R. 1952 Bom. 177). Before analysing those authorities, the Court found it useful to examine the structure of Chapter XIX of the Code, which governs charges. Chapter XIX was divided into two parts: “Form of charges” comprising sections 221 to 232, and “Joinder of charges” comprising sections 233 to 240. Sections 221 to 223 dealt with the framing and content of a charge; section 224 dealt with the interpretation of the language used in a charge; and section 225 addressed the effect of errors contained in the charge. Sections 226 to 231 outlined the court’s power to frame or alter charges and the procedure to be followed at trial when a charge was found to be defective, when no charge existed, or when a new charge had to be framed. Section 232 conferred power on the appellate court or the High Court to correct material errors in a charge. The second part of the chapter began with section 233, which provided that a separate charge must be framed for every distinct offence of which an accused person was charged, establishing the normal rule. However, this rule was subject to the exceptions listed in sections 234, 235, 236 and 239. The first three provisions related to the framing of charges against a single accused. Section 234(1) allowed a trial of a person for offences of the same kind not exceeding three, committed within twelve months from the first to the last offence, and section 231(2) explained the meaning of “offences of the same kind”. This provision partially lifted the prohibition against trying a person for more than one offence in the same trial. Section 235(1) went further by permitting the trial of a person for more than one offence where the offences were so connected as to constitute the same transaction, thereby removing the limitation of section 234(1) when such a connection was established. Section 235(2) dealt with situations where an offence fell within two definitions, and section 235(3) addressed cases in which a number of acts alleged against an accused could be combined in different ways to constitute different offences.

Section 235(1) of the Code allows a person to be tried for more than one offence when those offences are so connected that they constitute a single transaction. Under this provision, if the connection among the various offences is established, the restrictions imposed by Section 234(1) concerning the number of offences and the period within which they are alleged to have been committed cease to apply. The Court observed that giving full effect to Section 235(1) would be impossible if it were held to be subject to the limitation of Section 234(1). Sub‑section 2 of Section 235 deals with a situation where an offence falls within two definitions, while sub‑section 3 addresses cases in which several acts are alleged against an accused person and different combinations of those acts may constitute different offences.

Section 236 provides that when a single act or a series of acts is of such a nature that it is doubtful which of several offences the provable facts will constitute, the accused may be charged with having committed any or all of those offences, and any number of such charges may be tried together. The provision also permits the court to frame charges in the alternative if it deems fit, and it is a special rule applicable in cases of doubt, not subject to the limitations of Section 233 or the earlier provisions. The Court noted that if respondent No 1 had been tried alone on the second, third and fourth charges, Section 235(1) could have been invoked on the basis that the offences were connected as a single transaction, and the validity of the trial would not have been vulnerable to attack. Similarly, if the second respondent had been tried alone on the second charge, the trial would also have been free from objection provided the offences were alleged to form the same transaction. In the present case, however, the prosecution alleged a conspiracy involving the two respondents, an approver and other persons, and both respondents were tried together. The Court held that a conspiracy constitutes one transaction, and therefore a single individual charged with it may be tried under Section 235(1) for all acts committed in furtherance of the conspiracy without the restrictions of Section 234(1). Since all the acts are referable to the same conspiracy, their connection is evident. The only provision in the Code that permits the joint trial of more than one person is Section 239, and the Court indicated that it must examine whether, under that provision, the two respondents could have been jointly tried for the offences with which they were charged. The Court therefore proceeded to analyse the provisions of Section 239 in detail.

In order to explain the relevant statutory framework, the Court reproduced the complete wording of section 239, which read as follows: “The following persons may be charged and tried together, namely:- (a) persons accused of the same offence committed in the course of the same transaction; (b) persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence; (c) persons accused of more than one offence of the same kind within the meaning of section 234 committed by them jointly within the period of twelve months; (d) persons accused of different offences committed in the course of the same transaction; (e) persons accused of an offence which includes theft, extortion, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first‑named persons, or of abetment of or attempting to commit any such first‑named offence; (f) persons accused of offences under sections 411 and 414 of the Indian Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by one offence; and (g) persons accused of any offence under Chapter XII of the Indian Penal Code relating to counterfeit coin, and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges.” The Court first observed that the language of section 239 did not suggest that its various clauses were intended to operate exclusively of one another. Rather, the presence of the conjunction “and” at the conclusion of clause (f) indicated that the legislature had not imposed an either‑or limitation but had allowed the clauses to be applied together. Consequently, the Court held that the grammatical construction permitted a cumulative application of the clauses, and that the section functioned as an enabling provision granting the Court discretion to rely on two or more of the listed categories simultaneously. The Court further noted that, although a court could depart from the literal grammatical scheme if strict adherence would frustrate legislative intent, there was no indication that such a departure was required in this context. Finally, the Court examined the concluding sentence of section 239, which directed that the provisions of the earlier part of Chapter XIX should, as far as possible, apply to charges framed under section 239. The Court considered whether this statement compelled compliance with sections 233, 234, 235, and 236. It concluded that section 233 did not override section 239, and that section 234 could not be read as an overriding provision, because doing so would produce an absurd result whereby the earlier provisions of the chapter would be rendered ineffective.

In this case the Court observed that while several accused persons may be joined in a single trial for any number of different offences that they committed during the same transaction, the statute does not permit them also to be tried for offences of the same kind when the number of such offences exceeds three and when the offences are committed over a period extending beyond twelve months from the first to the last offence. The Court held that it could not have been the intention of the Legislature to create such a situation. The Court further noted that section 234(1) does not override the provisions of section 235(1), which allow a person to be tried for more than one offence committed during any period provided the offences are so connected as to form one transaction. Accordingly, unless section 234(1) is read as not imposing a restriction on section 235(1), it would be impossible to give full effect to the latter provision. Since section 234(1) cannot be properly read as overriding section 235(1), there is no valid reason to construe it as overriding the provisions of section 239 either. The Court then turned to the argument advanced by counsel for the appellant, who contended that section 239 must be read subject to sections 234(1) and 235(1) on the ground that any restrictions that apply to the trial of a single accused should also apply when an accused is tried together with several other persons. Counsel pointed out that where several persons are accused of more offences of the same kind committed jointly within a twelve‑month period, the number of offences for which they could be tried should not exceed three. In support of this view, counsel relied on the words “within the meaning of section 224” occurring in clause (c) of section 239, arguing that those words clearly indicate that clause (c) of section 239 is subject to the provisions of section 234. The Court held that the phrase “within the meaning of section 234” merely indicates that the expression “offence of the same kind” used in clause (c) of section 239 carries the same meaning as the identical expression defined in section 234(1) and further explained in section 234(2), and nothing more. The Court concluded that if the Legislature had intended to limit the number of offences for which several accused persons could be tried under clause (c) of section 239 to three, it would have expressed that intention either by stating that “persons accused of more offences than one of the same kind not exceeding three in number” or by using language such as “person accused of more than one offence of the same kind to the extent permissible under section 234.” Such wording would have made it unmistakably clear that clause (c) of section 239 was subject to section 234(1). Consequently, the Court found that interpreting clause (c) of section 239 as subject to section 234(1) would lead to an absurd result, wherein a single accused could be jointly tried for any number of different offences, yet would require a separate trial for more than three offences of the same kind committed jointly, a result that could not have been intended by the Legislature.

The Court observed that the statute created an inconsistency because a single accused could be jointly charged and tried for any number of offences of different kinds, yet for more than three offences of the same kind committed jointly a separate trial would be required. The Court held that such result could not have been the intention of the Legislature. The purpose of enacting section 239, the Court explained, was to prevent the occurrence of multiple separate trials for the same conduct. Accordingly, any limitation on trying several persons for the same kind of or different offences should arise only from considerations of justice and fairness. The Court further noted that interpreting the provision in this way would mean that, for an individual accused, the charges must be confined to three offences occurring within a twelve‑month period from the first to the last offence. However, when that accused individual acted together with one or more co‑accused who also participated in the same offences, the same three‑offence limitation would not apply. The Court suggested that the Legislature likely intended not to draw a distinction between a group committing any number of different offences jointly and a group committing any number of offences of the same kind jointly.

Counsel for the State argued that section 235(1) could not be given an overriding effect on section 239 because the former required acts to be “so connected together as to form the same transaction” whereas section 239(d) only referred to offences committed in the course of the same transaction. The Court considered the question whether, for the purposes of section 239(d), it was sufficient merely to establish that the offences were committed in the course of the same transaction, or whether it was also necessary to determine that the underlying acts were intrinsically connected. The Court explained that section 235(1) mandates an inquiry as to whether the offences arise out of acts that are so connected together as to constitute a single transaction. It observed that the phrase “so connected together as to form” does not appear after the words “same transaction” in the language of section 239, raising the issue of whether those words should be read into every clause of section 239 that mentions the same transaction. While section 235(1) provides for a joint trial of multiple offences, it also stipulates that a connection must exist between the acts and the transaction before they can be regarded as forming the same transaction. The Court pointed out that the Code does not define the expression “same transaction,” and that giving a precise definition would be difficult because the meaning inevitably depends on the particular facts of each case. Consequently, the Court concluded that determining whether several acts constitute the same transaction requires an examination of the specific factual circumstances surrounding those acts.

In this case the Court observed that trying to define the term left undefined by the Legislature is a difficult task, and no reported decision of any Court has attempted such a definition. Nevertheless, it is commonly understood that when there is a close proximity of time or place, or when the acts show a unity of purpose and design or a continuity of action, it may be inferred that those acts belong to the same transaction. The Court emphasized that it is not required for every one of these factors to be present in order for a transaction to be considered the same; the presence of several acts displaying a common purpose or design is a strong indication that they form part of the same transaction. The essential element, according to the Court, is a connection between the series of acts, and therefore the mere omission of the words “so connected together as to form” in clauses (a), (c) and (d) of section 239 does not materially affect the analysis. A transaction may consist of a single isolated act or of a series of acts; however, when a series of acts constitutes a transaction, those acts must necessarily be linked to one another. If any act stands independently, it would not belong to the same transaction but would represent a separate transaction or transactions. Consequently, even if the expression “same transaction” had been used only in section 235(1), it would have covered both a single act and a series of connected acts. The Court held that the expression “same transaction” appearing in clauses (a), (c) and (d) of section 239 should be given the same meaning as that in section 235(1) in accordance with ordinary rules of statutory construction. Viewing the provisions in this manner, the Court found it unnecessary to examine whether the provisions of section 239 are subject to those of section 236(1). Sections 235(2) and (3) are enabling provisions and cannot override other sections, although a court may still rely on them in a joint trial permitted by section 239. Similarly, section 236 is an enabling provision that may be invoked when doubt arises, making it meaningless to claim that section 239 is subordinate to section 236. The Court further noted that, because the provisions in the earlier part of Chapter XIX apply to charges made under section 239 only “so far as may be,” it would be incorrect to construe section 239 as being subject to sections 233 to 236. The argument that the phrase “former part” limited the application to only the first sub‑division of Chapter XIX was therefore rejected.

In this passage the Court explained that the phrase “division of chapter XIX which deals with the form and content of the charges and the powers of the court with regard to the absence of charge and alteration of charge” cannot be given a narrow construction. Even if those particular words were omitted, the earlier provisions of the Code could not be ignored, because the established rule of statutory construction requires that every provision of a statute be read together, given effect, and interpreted harmoniously. Accordingly, the Court held that although the sections that precede section 239 do not have an overriding effect on that section, the courts must not disregard them; instead, they must apply those earlier sections insofar as they can be applied without diminishing the effect of section 239. The expression “so far as may be” therefore underscores that, while the earlier provisions must be kept in mind when applying section 239, it is section 239 itself that ultimately prevails.

The Court further observed that the question of whether sections 233 to 236 have an overriding effect on section 239 is not directly relevant to the issue before the High Court, which was whether the various clauses of section 239 could be read together. The determination of whether the clauses may be read cumulatively depends on the language of the clauses themselves. Having already shown how those clauses can be read grammatically, the Court concluded that, on a plain construction of section 239, it is permissible for the Court to make cumulative use of the different clauses of that section for the purpose of framing charges. Charges framed in that manner would not violate the law even when the provisions of sections 233, 234 and 235 are taken into account.

The Court cited the decision of the Allahabad High Court in T R Mukherji’s case (IL) as directly applicable. That decision holds that the various clauses of section 239 are mutually exclusive, meaning that it is not permissible to combine the provisions of two or more clauses in a single case to try several persons jointly by applying part of one clause and part of another. The Court noted that numerous decisions of various High Courts and even a Privy Council decision were examined in the present case. While it was correctly observed that the general rule is separate trials and that joint trials are an exception, the Court explained that this principle is straightforward when a single individual is accused and the acts of additional persons are not involved. However, when the same act is alleged to have been committed by several persons, conducting separate trials for each would be inconvenient and unjust, leading to unnecessary multiplicity of proceedings, avoidable inconvenience to witnesses, and waste of public resources.

The Court observed that ordering each accused person to stand trial separately would create an unnecessary multiplicity of proceedings. Such a situation would impose avoidable inconvenience on witnesses, who would be required to give testimony in more than one proceeding, and would also lead to needless consumption of public time and money. The Court noted that the accused would not obtain any corresponding benefit from a practice of separate trials. While the normal rule of separate trials may appear reasonable when a number of distinct offences are alleged to have been committed by different accused persons, the Court emphasized that even in those circumstances the rule should be applied only if the offences are wholly unrelated. If the offences are alleged to form part of the same transaction, the only justification for separate trials would be the embarrassment or difficulty that the accused might face in defending themselves.

The Court expressed full agreement with the High Court that a joint trial must rest upon some identifiable principle. However, the Court found it difficult to accept the High Court’s view that each clause of section 239 enunciates a separate principle that is mutually exclusive and therefore cannot be cumulatively applied to try several persons jointly for several offences that form part of the same transaction. The High Court had held that the connection described in each clause is mutually exclusive, that no two clauses can exist simultaneously in any case, and that consequently persons cannot be connected with one another in more than one way. In other words, according to the High Court, persons who fall within two or more of the defined groups cannot all be tried together because there is nothing to link one group with another. The Court noted that the High Court offered no reason to support this view and proceeded to examine whether any intrinsic incompatibility exists in combining two clauses of section 239. The Court also referenced the authority cited by the High Court, namely A. I. R. 1954 All. 501, without endorsing the conclusion drawn from it.

The Court then considered the practical effect of combining clause (a) and clause (b) of section 239. Clause (a) provides that persons accused of the same offence committed in the course of the same transaction may be charged and tried together. Clause (b) provides that a person accused of an offence and a person accused of abetment of, or an attempt to commit, the same offence may also be charged and tried together. The Court illustrated this by supposing that persons A, B and C are tried for murder. There is no intrinsic difficulty in trying, in the same proceeding, persons X, Y and Z who are accused of abetting the same murder. All of them participated in the same transaction, and the abetment by X, Y and Z creates a direct link between their conduct and that of A, B and C. The Court further examined the combination of clause (a) with clause (c). Clause (c) states that persons accused of more than one offence of the same kind, within the meaning of section 234, committed jointly within a period of twelve months, may also be charged and tried together. The Court indicated that this provision, like the others, can be read in harmony with clause (a) where the offences are of the same kind and arise from the same factual transaction.

In the present discussion, the Court examined the effect of the various clauses of section 239 with the aid of two factual illustrations. In the first illustration, two accused, identified as A and B, entered a house during the night and together committed two murders, first killing a man who was sleeping there and subsequently killing his wife. Each accused was therefore responsible for two offences, and each participated in the murder of both victims. The Court asked why these two murders could not be tried in a single proceeding and why two separate trials would be required. Both offences were of the same kind, namely murder, and they were committed in the course of the same transaction because A and B acted in concert and their actions were intrinsically connected. The Court noted that if, for example, A killed the man and B killed the wife, clause (c) of section 239 permitted a joint trial because the offences were of the same kind. It would be untenable to hold that a joint trial was impossible on the ground that clauses (a) and (c) could not be applied together, for without a combined application of the two clauses a joint trial of the two murders in which both accused participated would be barred.

The Court then turned to the interaction of clauses (a) and (d). Clause (d) allows persons accused of different offences committed in the course of the same transaction to be tried together. To illustrate, the Court described a scenario in which a group of persons were alleged to have formed an unlawful assembly with the purpose of intimidating another group and taking possession of a piece of land. Some members of the assembly were armed with axes and others with lathis. During the assault, an individual from the second group was killed by axe blows delivered by A, B and C. Two other members of the second group suffered grievous hurt from lathi blows, while a third sustained simple hurt. The grievous injuries were attributed to blows from X and Y, and the simple injury to a blow from Z. The offences involved were those under sections 147, 302, 325 and 323 of the Indian Penal Code. Because the offences were different and the perpetrators were different, the Court observed that a joint trial could not be effected solely by relying on clause (a) of section 239, nor could it be effected solely by relying on clause (d). Nevertheless, the entire series of acts formed a single transaction and the participants were closely associated. The Court therefore asked what intrinsic difficulty existed in trying all the accused together by employing both clauses (a) and (d) of section 239. It concluded that the clauses are enabling provisions, and the circumstances indicated that a court may invoke one or more of these provisions simultaneously, provided that doing so does not contravene any other provision of the Code. All such combined use was therefore permissible.

In the present situation, the individuals involved may be tried together for the offence specified in section 147 by invoking clause (a) of section 239. In the same manner, persons identified as A, B and C may also be tried jointly for an offence punishable under section 302. Moreover, X and Y may be charged not only with offences falling under sections 147 and 325 of the Indian Penal Code but also with an offence under section 302 read with section 149. In a similar fashion, Z may be charged with offences under sections 147 and 323 as well as with an offence under section 302 read with section 149 and an offence under section 325 read with section 149. The common offence committed by all of them is the one covered by section 147, and consequently all of them may be tried together for that particular offence by invoking clause (a). If one considers clause (d) alone, it would permit the joint trial of all of them for the various distinct offences each committed during the same transaction. However, should clause (a) be unavailable, they could not be tried together for the offence under section 147 in the same proceeding. This would require that the trial for the offence under section 147 be separated from the trial for the other offences committed by the same persons. It is difficult to understand what purpose would be served by separating the trial for the identical offence from the trial for the other offences arising out of the same transaction. Reiterating, the legislative intent behind enacting section 239 of the Code of Criminal Procedure was clearly to avoid multiple trials. Interpreting the different clauses of section 239 in a disjointed manner would defeat that purpose and would lead to an extraordinary result. Accordingly, the reasons offered by the Allahabad High Court in its earlier decision do not merit acceptance. The judgment in Singarachariar’s Case does not have any relevance to the point presently under consideration. That earlier decision dealt with the mutual exclusivity of sections 235(1) and 236, holding that when a case falls within one of those provisions it cannot simultaneously fall within the other. The matter before the High Court concerned whether a person who had been first tried and acquitted for an offence under section 380 of the Indian Penal Code – stealing a blank second‑class railway ticket – could subsequently be tried for the offence of forgery by making entries in that ticket and using it. The acquittal was argued to be a bar under section 403(1) of the Code to a later trial for an offence under section 467. The contention was that the case fell under section 236, and that, had both offences been tried together, the court could have dealt with the matter under section 237. The High Court, however, held that the case fell under section 235(1), thereby excluding the application of section 236. It is difficult to see how this decision assists the conclusion sought by the present court.

In the decision of the High Court in D K Chandra’s case, the court observed that sections 234, 235 and 236 of the Code of Criminal Procedure are exceptions to section 233 and therefore must be interpreted narrowly. The court held that a joinder of charges which does not fall within any of those three sections would be illegal and contrary to law. The matter before the present court, however, required a determination of whether the various clauses of section 239 could be applied together. That precise question was not addressed in D K Chandra’s case, which dealt only with the strict construction of sections 234 to 236. Consequently, the earlier decision provided only limited assistance to the issue presently under consideration.

The State of Andhra Pradesh v Kandinmlla Subbaiah, a decision of this Court, is more directly relevant. In that case the Court held that when several persons commit offences during the same series of transactions, they may be tried jointly for all those offences under section 239 of the Code of Criminal Procedure, and the limitation imposed by section 234 does not apply. The facts involved nine accused who were jointly tried for an offence under section 5(1)(c) and (d) of the Prevention of Corruption Act, 1947, as well as for offences under section 109 of the Indian Penal Code read with section 420, and sections 466 and 467 of the Indian Penal Code. All except one of the accused faced charges under sections 420, 467 and 471 of the Indian Penal Code, and some of them were also charged with separate offences under those provisions. Two of the accused filed revision applications before the High Court of Andhra Pradesh challenging the charges framed against them. The High Court allowed the revision applications, but the State appealed to this Court. On appeal, this Court held that there was no mis‑joinder of charges. It observed that the presence of a large number of charges extending over a long period was a question of propriety that should be left to the trial judge or magistrate, who may decide the appropriate course in the factual circumstances. The Court further noted that the special judge assigned to the trial should consider separating the charges where necessary so that the accused would not be prejudiced in answering and defending against them. Although the specific issue of reading the various clauses cumulatively was not directly decided, the High Court had found that the first charge was an omnibus charge comprising as many as two hundred and three offences, which was in direct violation of sections 234, 235 and 239 of the Code of Criminal Procedure. In addressing that violation, this Court quoted section 234(1), which provides that not more than three offences of the same kind committed by an accused within twelve months may be tried together, and explained that section 235(1) allows multiple offences committed in the same transaction to be tried together, thereby superseding the limitation of section 234(1).

The Court observed that section 234(1) of the Code of Criminal Procedure limits the number of offences of the same kind that may be tried together to three when those offences are committed by the same accused person within a twelve‑month period. However, the Court noted that section 235(1) provides an exception: if a series of acts are so connected as to constitute the same transaction and more than one offence is committed by the same person, that person may be charged and tried for each offence in a single trial. Consequently, where the alleged offences arise out of the same transaction, the limitation in section 234(1) does not apply. The Court further pointed out that the first charge in the present case is alleged to have been committed not by a single individual but by all the accused persons, raising the question of whether those persons may be tried jointly for all the offences described in that charge. The Court referred to section 239, which permits the joinder of persons in certain circumstances. Section 239 states that the following persons may be charged and tried together: (i) persons accused of the same offence committed in the course of the same transaction; (ii) persons accused of abetment or attempt to commit such an offence; and (iii) persons accused of different offences committed in the course of the same transaction. On the basis of these provisions, the Court concluded that all the accused could be tried together for every offence presently included in charge No. 1. The Court emphasized that it has read the various provisions cumulatively and saw no justification for any other construction.

The Court then referred to the earlier decision in K.V. Krishna Murthy Iyer v. The State of Madras, which was heavily relied upon by counsel. In that case, the Supreme Court upheld a High Court order that quashed the charges by exercising its inherent powers before the trial concluded. The Court noted that in that precedent the charges numbered sixty‑seven and were spread over a long period, and the matter was considered by the High Court before any conviction, not after the trial had ended. The Court explained that when an objection to multiplicity or misjoinder of charges is raised at an early stage, there is sufficient opportunity to correct any error. In the present matter, however, no objection to multiplicity or misjoinder was raised before the learned Additional Sessions Judge; the issue was only raised before the High Court. Accordingly, the Court held that the appropriate inquiry is whether any prejudice has actually been caused to the accused by the alleged multiplicity or misjoinder of charges. The Court cited section 537 of the Code, as amended by Act 26 of 1955, to support this approach. Finally, the Court mentioned the decision in Willie (William) Slaney v. The State of Madhya Pradesh, where all the judges agreed that sections 537 and 535 cover every situation involving departures from the procedural rules in Chapter XIX, including errors, omissions, and irregularities in the framing of charges.

In discussing the scope of charges that may be framed, the Court noted that the discussion includes not only charges that have actually been framed but also charges that could have been framed and were omitted, as well as a complete failure to frame any charge at any stage of the trial. The Court observed that this issue was recently examined in Birichh Bhuian v. The State of Bihar. Justice Subba Rao, delivering the judgment of the Court, summarised the position by defining a charge as a precise formulation of a specific accusation made against a person for an alleged offence. He explained that Sections 234 to 239 of the Code allow the joinder of such charges under specified conditions for the purpose of a single trial. This joinder may involve charges relating to different offences committed by a single individual or by several individuals. He further stated that if the joinder of charges contravenes the provisions of the Code, it constitutes a misjoinder of charges. Section 537, he noted, bars a revisional or appellate court from setting aside a finding, sentence or order of a competent court on the ground of such a misjoinder unless the misjoinder has caused a failure of justice (1) [1955] 2 S. Co R. 1140, (2) [1963] Supp. 2S.C.R. 328. The Court then considered the hypothetical possibility that a misjoinder of charges in violation of Sections 233 to 239 had occurred. It held that the High Court was without authority to set aside the respondents’ convictions unless it had reached a definite conclusion that the misjoinder had resulted in a failure of justice. This reasoning aligns with the argument advanced in Dawson’s Case. The Court emphasized that merely because the accused are charged with many offences and are convicted at trial, an appellate court cannot set aside the conviction unless it actually finds that the accused were embarrassed in their defence, leading to a failure of justice. Accordingly, the Court rejected the submission of counsel that misjoinder and multiplicity of charges warranted interference. Counsel for the respondents, Mr Bhimasankaram, supported the view of the High Court that a charge of conspiracy could not be framed once the conduct had moved beyond the stage of conspiracy and offences had been committed. The Court noted that the same High Court had expressed a similar view in the case reversed by this Court in The State of Andhra Pradesh v. Kandinalla Subbaiah, where it was held that conspiracy to commit an offence is itself an offence and a person may be separately charged for the conspiracy. The Court then quoted its earlier observation that where several offences are committed by several persons in pursuance of a conspiracy, it is usual to charge them with each of those offences as well as with the offence of conspiracy to commit those offences, citing the authorities (1) (1960) 1 All E. R. 558 (2) [1962] 2 S.C.R. 194.

In the case of S. Swamirathnam v. State of Madras (1) the point was not argued before this Court in the same manner as it was before the High Court of Andhra Pradesh, yet this Court observed that there was nothing improper in the trial of several persons who were accused of offences under sections 120‑B and 420 of the Indian Penal Code. Consequently, the Court could not accept the view of the High Court of Andhra Pradesh that the charge of conspiracy was defective. The Court explained that if the alleged offences are said to have arisen out of the conspiracy, the proper approach would be to frame a specific charge for each offence in addition to the charge of conspiracy, and that this reasoning was sufficient to resolve the issue presently before it. In Swamirathnam’s case (1), which is a decision of this Court, certain persons were tried both for the offence of conspiracy to cheat the public and for specific offences of cheating carried out in furtherance of that conspiracy. It was contended before this Court that there was a misjoinder of charges and of persons. Rejecting that contention, the Court held that the charge as framed disclosed a single conspiracy, although the conspiracy extended over several years, and that the sole object of the conspiracy was to cheat the members of the public. The Court further observed that the fact that, over the years, additional individuals joined the conspiracy or that several incidents of cheating occurred in pursuance of the conspiracy did not split the conspiracy into separate conspiracies. The various instances of cheating alleged to have been committed in furtherance of the conspiracy were parts of the same transaction, and therefore the joint trial of the accused for the different offences was not vitiated. The decision did not address whether the various clauses of section 239 could be combined or the effect of sections 233 to 236 on section 239, but the substance of the decision is directly opposed to the argument now presented. This decision was subsequently followed in Natwarlal Sakarlal Mody v. State of Bombay (1). In that case the Court considered the impact of section 120‑B of the IPC on sections 233 and 239 of the Code of Criminal Procedure and observed that the combined effect of sections 235, 236 and 239 is that when there is a criminal conspiracy to commit different offences, the members of that conspiracy may be charged and tried together, provided that the condition for invoking section 239(d) is satisfied – namely, that the offence must have been committed in the course of a single transaction, i.e., the same conspiracy. Again, the question of clubbing together the various provisions of clauses (a) to (d) of section 239 was not expressly raised in the arguments, but the ultimate decision of that case would negate such an argument.

In this case the Court observed that the various provisions of clauses (a) through (d) of section 239 had not been expressly argued before it, yet the final judgment would reject that line of argument. Counsel for the accused, Mr Bhimasankaram, cited the decision in R v Dawson and argued that it was not advisable to try the respondents together for as many as eighty‑three offences. He further pointed out that similar observations had been endorsed by this Court in The State of Andhra Pradesh v Kandimalla Subbaiah. The Court noted that, in the Kandimalla case, the trial had not yet commenced, and it had previously held that introducing a large number of charges in a single proceeding was undesirable. The Court referred to the earlier decision recorded as Criminal Appeal No III of 1959 decided on 19 January 1961, to the report of R v Dawson (1960 1 All E.R. 568) and to the judgment in Kandimalla (1962 2 B.C.R. 194). It added that while a trial spread over a long period might be inevitable, the question of propriety in joining many charges should be left to the discretion of the trial judge or magistrate.

Mr Bhimasankaram raised a serious objection to the charge of conspiracy that had been framed against the accused. The charge read: “That both of you, together with K V Ramana, former senior accountant of the Vizagapatam Electric Supply Corporation Ltd., Visakhapatnam (approver), and others, known or unknown, around 1 April 1947 at Visakhapatnam, agreed to commit illegal acts, namely criminal breach of trust of the corporation’s funds and to conceal the crime, to wilfully and with intent to defraud falsify the corporation’s accounts, and that pursuant to that agreement you committed criminal breach of trust involving a sum exceeding Rs 3,20,000 and falsified the accounts between April 1947 and March 1952, and also used forged documents as genuine; offences punishable under sections 409 and 477‑A of the Indian Penal Code and section 471 read with section 467, and thereby committed an offence of criminal conspiracy punishable under section 120‑B of the Indian Penal Code and within my cognizance.” The counsel’s first objection was that the charge combined the conspiracy itself with the acts carried out in furtherance of the conspiracy. His second objection was that the charge swept in all the various offences alleged to have been committed by the respondents. The third objection claimed that a charge of conspiracy could not be framed after the conspiracy had already produced its results. The final objection asserted that the conspiracy charge had been added to the charge sheet at a very late stage. The Court indicated that it would first address the third objection, noting that conspiracy is an entirely independent offence even though other offences may be committed in pursuance of the conspiracy.

The Court noted that once a conspiracy is formed, the liability of the conspirators for that conspiracy does not disappear. It explained that, when the Indian Penal Code was originally enacted, conspiracy was not itself an offence. The provision that makes criminal conspiracy punishable, Section 120‑B, was inserted by the Indian Criminal Law Amendment Act, 1913 (Act 8 of 1913) together with Section 120‑A. Section 120‑A supplies the definition of conspiracy, while Section 120‑B sets out the punishment for the offence of conspiracy. According to the definition in Section 120‑A, a criminal conspiracy consists of an agreement either to commit an illegal act or to do an act that is not illegal by using illegal means. Section 120‑B provides that anyone who is a party to a criminal conspiracy to commit an offence punishable with death, life imprisonment or rigorous imprisonment for two years or more shall be punished in the same manner as if he had abetted that offence, unless a specific provision in the Code prescribes a different punishment for such conspiracy.

The Court observed that criminal conspiracy was not an unfamiliar concept before the 1913 amendment, but the amendment’s effect was to make the conspiracy itself punishable. The purpose, the Court said, was to prevent crimes by “nipping them in the bud”. However, the Court stressed that the occurrence of the substantive crimes does not erase the liability that accrued under Section 120‑B by entering into the conspiracy. While it is sometimes undesirable, in particular factual circumstances, to charge a person both with the underlying offences and with the conspiracy that led to them, that decision rests with the trial court exercising its discretion.

Regarding the fourth objection raised, the Court held that it concerns not the form of the charge but the credibility of the evidence relating to the conspiracy. Since the appeal was being remanded to the High Court for a fresh decision after a full consideration of all evidence, the High Court would be free to assess the credibility of the approver’s testimony in this regard. The Court also agreed with counsel that the material placed in brackets should not have been included. It observed that the magistrate’s insertion of that material appeared merely to describe the conspiracy and did not serve any other purpose.

Finally, the Court rejected the contention that the charge was vitiated because it swept within it all the offences alleged to have been committed by the respondents. The Court explained that the primary objective of the first charge was simply to give the respondents notice of the scope of the conspiracy they were required to answer for, and that, absent any timely objection or material showing prejudice, the charge could not be said to be invalid.

The Court explained that the charge against the respondents was intended solely to inform them of the extent of the conspiracy they were required to answer, and nothing beyond that purpose. Even if the charge were considered cumbersome, the respondents had not raised any objection at the appropriate time, and there was no material indicating prejudice; consequently, the provisions of section 225 barred them from challenging the charge after their conviction by the trial court. Turning to the arguments raised by counsel for the State regarding alleged misuse of powers under section 342, the first allegation was that the questions posed to the respondents were excessively long and complex. The second allegation was that certain questions referred to documents which had not been made available to the respondents for answering those questions. The third allegation asserted that the questions were confusing, involved, and bordered on cross‑examination. Finally, it was contended that the court had failed to fulfil its duty under section 342(4) of the Code, as amended, by not informing the respondents that they could, if they wished, give evidence in their defence. In support of the first allegation, counsel cited questions numbers 4, 8, 9, 10 and 20 directed to respondent No I and question 12 directed to respondent No 2, arguing that these questions combined many separate enquiries and that the respondents could not possibly provide rational answers to them. The Court examined both the questions and the answers given. While it concurs that the questions covered a number of distinct matters and that it would have been preferable to frame each as a separate question, the answers submitted by the respondents clearly demonstrate that they understood the questions and, wherever possible, provided complete responses. In other words, the respondents explained the circumstances set out in the evidence mentioned in the questions, and where a full answer was not feasible at the time, they indicated that they would address the point in their written statements. Indeed, each respondent filed a written statement in which every remaining issue was fully answered. The Court was informed that the questions had been prepared in advance by the learned Additional Sessions Judge, that copies of those questions were supplied to each respondent, and that the respondents based their oral answers in court on those copies. Particular attention was drawn to question No 20 addressed to respondent No I, which contained twenty‑two sub‑headings and was described as an extremely unfair and embarrassing question. The Court observed that the learned Additional Sessions Judge had erred on the side of over‑cautiousness by presenting every circumstance appearing in the evidence to the respondents so as to elicit their explanations. His

The Court observed that the purpose of the extensive questioning was to prevent any possibility of a complaint before the appellate court that the respondents had been denied a chance to explain the circumstances shown in the evidence because of defective questions. It further held that there was no merit in the allegation that the respondents were unable to refer to the documents mentioned in certain questions, since no objection had been raised by them before the learned Additional Sessions Judge and the manner in which they answered demonstrated that they had indeed examined the relevant papers before responding. The Court was also satisfied that the claim that the line of questioning had become cross‑examination was unfounded. While acknowledging that the learned Additional Sessions Judge had asked the respondents very thoroughly and at length, the Court stated that describing this thoroughness as cross‑examination was wholly unjustifiable. It reiterated that the clear intention of the learned Additional Sessions Judge, as previously noted, was to leave no loophole for a future complaint of incomplete or insufficient examination under section 342 of the Code.

The Court further clarified that it was not the court’s duty to specifically draw the respondents’ attention to the provisions of sub‑section (4) of section 342 and to inform them that they could, if they wished, enter the witness box. It recognized that the introduction of this provision removed the previous disability that prevented an accused from giving evidence on oath in his own defence, thereby placing the accused on an equal footing with a counterpart under English law. However, the Court explained that the new provision merely lifted the ban and did not obligate the court to point out its existence to the accused. The respondents had been represented by counsel at trial, and that counsel was fully aware of the law. No grievance was raised by the respondents on appeal that they were unaware of their right to give oath‑bound evidence or that such ignorance had caused prejudice. Consequently, the Court rejected this contention as baseless. The Court then turned to the irrelevant material cited by Mr Bhimasankaram, which consisted of certain account books of VESCO. Those books recorded payments made to various parties, including Crompton Engineering Co., Lumin Electric Co., D. Brothers, Radio and Electrical, Madras, Vizagapatam Municipality, P. V. Ramanayya Bros., and Andhra Power System. The entries also indicated that the amounts recorded in VESCO’s books did not appear in the account books of the corresponding firms or authorities because the payments were never actually made by VESCO. The High Court had previously noted that the principal evidence supporting the prosecution’s case related to the amount represented by these entries.

It was observed that the entries made against the various firms were in fact misappropriated by the respondents, and this situation existed because there were no corresponding entries in the account books of those firms. The contention placed before the High Court and reiterated before this Court was that the mere absence of an entry could not... electricity duty to Government. The prosecution sought to rely upon section 34 of the Indian Evidence Act, which provides: “Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.” This provision is found in a series of sections titled “Statements made under special circumstances.” Its effect is to make regularly kept business account entries admissible in any court proceeding, while expressly stating that such entries, by themselves, cannot establish liability against any person. Consequently, when one party sues another for a sum of money, the plaintiff may introduce his own account books as evidence, provided the books were regularly maintained and show that the amount claimed was debited to the defendant. Even though the entry is made by the plaintiff in his own books and is favourable to him, it constitutes a piece of evidence that the court may consider in determining whether the alleged payment was actually made by the plaintiff to the defendant. The entry alone does not aid the plaintiff’s claim, but it can be examined together with other evidence to draw a conclusion that the payment occurred. Thus, entries in account books are relevant and can be proved, but only to the limited extent described in section 34, which does not address the non‑existence of entries in any books. Accordingly, this Court agrees with the High Court that the account books of the various concerns to which the respondents alleged payments were made do not, by themselves, prove that those concerns did not receive any payments. The High Court’s reliance on the decision in Queen Empress v. Grees Chunder Banerjee (1884) I L R 10 Cal 1024 supports this view. A similar conclusion is reached in Ram Prashad Singh v. Lakhpati Koer, where Lord Robertson observed that no inference may be drawn from the absence of an entry relating to a particular matter, an observation that aligns with the reasoning in Queen Empress v. Girish Chander Banerjee. However, section 34 is not the only provision at issue; section 11 of the Evidence Act also provides that facts which are not otherwise relevant become relevant if they are inconsistent with any fact in issue or with any other relevant fact.

In this case, the Court identified several facts that were in issue, chiefly whether particular sums of money had been paid to Crompton Engineering Co. and to other firms or authorities. These matters were deemed relevant to the dispute. The Court noted that the lack of any entries concerning those payments in the account books of the firms would contradict the notion that the firms had received the sums, and such an absence could be presented as a relevant fact under section 11 of the Evidence Act. The Court further observed that the assertion that the firms had not received any payments had been affirmed by individuals who were connected with the firms, whose responsibilities included receiving and acknowledging amounts on behalf of the firms or managing the firms’ accounts. Consequently, to demonstrate that no monies were received by the firms, the Court held that the firms’ own account books were as pertinent as the VESCO account books that purportedly recorded the opposite. The Court then referred to section 5 of the Evidence Act, which provides that “Evidence may be given in any suit or proceeding of the existence or non‑existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.” The prosecution contended that VESCO had never made the alleged payments to the various firms and that the firms, in the ordinary course of business, maintained their accounts and habitually recorded every payment they received. Both the non‑receipt of the amounts by the firms and the absence of corresponding entries in their account books were therefore relevant facts, as supported by the authorities cited. Accordingly, the Court found that the prosecution was entitled to introduce evidence to prove both of these facts. The most direct evidence to establish the absence of entries in the firms’ books would be the books themselves, and under the cited statutory provisions those books must be treated as relevant. While the weight to be given to those books would be a matter for the trier of fact, the Court recognised their admissibility. The Court also noted that VESCO’s account books displayed certain payments to Billimoria & Co. of Kharagpur, and that police‑seized papers included receipts allegedly signed by J. J. Billimoria on the firm’s behalf. The prosecution alleged that those receipts were forged and that the entries in VESCO’s books were false. A partner of Billimoria & Co. was examined as a witness by the prosecution; he produced the firm’s account books, which were written in Gujarati, and testified that the books were regularly maintained and contained no entries corresponding to those shown in VESCO’s accounts. The High Court had held that, because the Gujarati books had not been translated, they were inadmissible; the present Court considered that conclusion in the context of the evidence statutes.

In this case, the Court held that the High Court erred in declaring the Gujarati account books of the firm inadmissible. The High Court had relied on section 356 (2A) of the Code of Criminal Procedure, which the Court explained governs only oral testimony given in a language other than English, and does not pertain to documentary evidence. Consequently, the counsel for the respondent was correct in rejecting the High Court’s basis for exclusion, and the Court indicated that it would not elaborate further on that point. The Court also noted that the partner Billimoria had presented his testimony in English, thereby removing any language barrier for his oral evidence.

The counsel for the respondent further argued that the prosecution had introduced as many as two thousand documents, of which sixteen hundred were not offered for proof, and that sixty‑four documents were absent from the record when the case reached the High Court, allegedly causing serious prejudice to the respondent. The Court observed that the lower courts had not taken any objection to the missing documents, and, finding no demonstrable prejudice to the respondent, declined to give effect to that complaint.

Another contention raised by the counsel for the respondent was that the approver had been permitted to refresh his memory by extensively referring to the account books and other documents during his deposition, which the counsel claimed violated section 159 of the Evidence Act. The Court explained that section 159 authorises a witness to use any writing made by himself at the relevant time, or a writing made by another person, to refresh his memory, and that section 160 authorises the witness to testify to the facts contained in such documents. The counsel argued that the approver should have been questioned only on the specific facts he sought to prove, and allowed to consult the books solely when he could not recall those facts. The Court, however, observed that when a witness must answer questions concerning a large number of transactions, it is reasonable to permit reference to the books and documents, because no witness can be expected to recall every detail unaided. Section 160 expressly allows a witness to testify to facts recorded in a document even if his personal recollection is lacking, provided he is confident of the document’s accuracy. The Court concluded that the Additional Sessions Judge’s procedure of allowing the approver to refer to the accounts while answering questions did not contravene any statutory provision nor constitute an abuse of judicial power.

In this case, the Court observed that when a large number of transactions are involved and those transactions are recorded in account books or other documents, there is no objection to permitting the witness to refer to those books and documents while answering questions during examination. The Court noted that it is unreasonable to expect a witness to recall every transaction in full detail, and Section 160 of the Evidence Act expressly allows a witness to testify about facts recorded in documents identified in Section 159 even if the witness does not personally remember the facts, provided the witness is confident that the documents are accurate. The Court found that this description matched the facts of the present case and concluded that the Additional Sessions Judge had not adopted a procedure that violated any law or amounted to an abuse of judicial power. The Court then turned to the second, more serious contention raised by counsel for the State. Counsel argued that the pardon offered to the approver was illegal and, if so, the approver’s evidence should be entirely excluded. Counsel further asserted that the Additional Sessions Judge had characterized the approver’s evidence as unreliable, and consequently the first condition articulated in Sarwan Singh v. The State of Punjab (1) had not been satisfied. On that basis, counsel contended that the approver’s evidence must be struck out, and that doing so would leave the prosecution with no remaining evidence, since the Additional Sessions Judge himself had described the approver’s testimony as the cornerstone of the prosecution’s case. The Court quoted the citation (1) [1957] S.C.R. 953. Counsel advanced two grounds for declaring the pardon illegal. First, counsel claimed that none of the alleged offences fell within the ambit of Section 337 of the Code of Criminal Procedure. Second, counsel argued that the pardon had been granted by an authority lacking the power to do so. The Court then reproduced the wording of Section 337(1) as it existed before amendment by Act 26 of 1955, which permitted a District Magistrate, a Presidency Magistrate, a sub‑divisional Magistrate or any Magistrate of the first class to tender a pardon to a person directly or indirectly involved in an offence, at any stage of investigation, inquiry or trial, provided the offence was triable exclusively by the High Court or Court of Session, or punishable with imprisonment of up to ten years, or punishable under Section 211 of the Indian Penal Code with imprisonment of up to seven years, or falling under specified sections of the Indian Penal Code, namely sections 161, 165, 165A, 216A, 369, 401, 431, 435 and 477‑A. The provision further required that the magistrate tender the pardon on the condition that the person made a full and true disclosure of all circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.

The provision stipulated that the power to grant pardon could be exercised only by a District Magistrate or by a Magistrate of the first class who was actually conducting the inquiry or the trial of the offence. In cases where the offence was merely under investigation, a first‑class Magistrate could use the power only if he had jurisdiction over the area where the offence might be investigated or tried, and only after obtaining the District Magistrate’s sanction. One of the parties argued that, because none of the offences in this matter were exclusively triable by the High Court or the Court of Sessions, a pardon could be given only when the offences were punishable by imprisonment that might extend to ten years, and not when a higher punishment was provided. The offence of criminal breach of trust, alleged against the respondents under section 409 of the Indian Penal Code, is not exclusively triable by a Court of Sessions. The schedule to the Code listed the maximum penalties for this offence as either transportation for life or imprisonment of either description for ten years, together with a fine. The argument advanced was that, since transportation for life was a possible punishment, section 337(1) could not be invoked to grant a pardon to an approver. The Court found that reading section 337(1) in that restrictive manner would be incorrect. The provision’s purpose, as explained, is to permit a pardon to be offered in situations where a serious offence is alleged to have been committed by several persons, so that the evidence of the pardoned individual can help secure conviction of the remaining participants. The seriousness of the offence is to be measured by the maximum sentence that may be imposed for it. The State’s counsel submitted that if the words “any offence punishable with imprisonment which may extend to ten years” were read to mean offences punishable by less than ten years, then serious offences not exclusively triable by a Court of Sessions would fall entirely outside section 337(1). He further suggested that the provision could be reasonably understood to allow a pardon where the offence carried a maximum imprisonment exceeding ten years. While that interpretation would achieve the provision’s aim of covering gravest offences, the Court chose not to express an opinion on it. Instead, the Court observed that the pardon afforded in the present case fell within the scope of section 337(1) for another reason: the offence under section 409 was not punished solely by transportation for life, even before the amendment, because an alternative penalty of imprisonment for up to ten years was also available.

In this case, the Court observed that before the amendment made by section 117 of Act 26 of 1955, section 409 of the Indian Penal Code provided two alternative punishments: transportation for life and imprisonment for a term not exceeding ten years. Because the offence under section 409 was therefore punishable not only by transportation for life but also alternatively by imprisonment that could extend to ten years, the Court held that section 337(1) applied. The Court noted that section 337(1) does not expressly require that the only punishment for an offence be imprisonment not exceeding ten years. The presence of two alternative maximum sentences in column 7—transportation for life (now replaced by imprisonment for life) and imprisonment not exceeding ten years—reflected the fact that the offence was not exclusively triable by a court of sessions and could also be tried by a magistrate who, except when empowered under section 30, would be incompetent to try offences punishable by transportation for life (now imprisonment for life). The Court explained that this arrangement permitted a court of sessions, instead of imposing transportation for life, to impose imprisonment in an Indian jail for a period not exceeding ten years. Although the amendment substituted the words “imprisonment for life” for “transportation for life,” the Court said the original structure of the amended sections remained, making the language appear somewhat odd but still serving the purpose of allowing certain offences triable by a court of sessions to be triable also by first‑class magistrates. Consequently, the Court found no substance in the first ground of attack. The Court further observed that the reasoning about a pardon in respect of an offence under section 409 applied equally to an offence under section 120‑B, because the punishment for that offence was the same as that for the offence under section 409.

The Court then considered the offence under sections 467 read with 471, which was punishable by imprisonment for life or by imprisonment of either description for a period of ten years, and noted that this offence was exclusively triable by a court of sessions; therefore, the argument advanced by Mr Bhimasankaram was unavailable. Regarding the offence under section 477‑A, the Court pointed out that this offence was specifically listed in section 337(1), and the argument previously raised and rejected could not be used to challenge a pardon for that offence. The Court also observed that, although respondent No. I was the only person convicted by the Additional Sessions Judge of the offence under section 477‑A and of the offence under sections 467 read with 471, the validity of a pardon had to be examined solely with reference to the offence alleged against the approver, not with reference to the offences for which his co‑accused were ultimately convicted. Finally, the Court turned to the next ground of attack on the validity of the pardon, the

In this case the respondent’s counsel argued that Section 337(1) of the Code authorises a pardon only when it is granted by a District Magistrate, a Presidency Magistrate, a Sub‑Divisional Magistrate or any Magistrate of the First Class, and that the power is excluded where an enquiry or trial is already pending before another magistrate. The pardon that had been issued in the present matter was made by an Additional District Magistrate while an enquiry was ongoing before the District Magistrate, and consequently the counsel contended that the pardon was illegal and of no effect. He further maintained that the expression “District Magistrate” in Section 337(1) does not embrace an Additional District Magistrate, and that such an additional officer cannot be invested with the power to grant pardon because the section does not contemplate a grant by an Additional District Magistrate. According to this argument the Additional District Magistrate would possess only the status of a Magistrate of the First Class. It is true that entry (9‑a) in Part III of Schedule III to the Code confers on a Magistrate of the First Class the authority to grant pardon under Section 337, but that authority is limited by the proviso to certain specified classes of cases. A case that is already before another magistrate does not fall within any of those classes, and therefore a pardon issued by a Magistrate of the First Class in such circumstances would be illegal. The magistrate who is conducting the enquiry or trial, namely the District Magistrate, would be the sole authority competent to grant a pardon in that situation. Alternatively, the State Government has not issued any directions under sub‑section (2) of Section 10 that would allow the powers of the District Magistrate to be exercised by the Additional District Magistrate concerned. To appreciate and evaluate this argument, it is necessary to recall the changes that were effected in the magisterial set‑up of the former Province of Madras, which then included the district of Visakhapatnam. By Government Order No. 3106 dated 9 September 1949, the Government of the Province of Madras issued instructions to magistrates following the separation of the judiciary from the executive. The order divided the magistrates into two groups, namely judicial magistrates and executive magistrates. The latter category comprised the executive officers of the Revenue Department, who continued to bear responsibility for the maintenance of law and order. Paragraph 4 of the instructions provides: “.................. To enable them to discharge this responsibility, these officers will continue to be magistrates. The Collector, by virtue of office, will retain some of the powers of a District Magistrate and will be called the ‘Additional District Magistrate. To distinguish him from his Personal Assistant, he may be called ‘Additional District Magistrate (Independent)’. He will continue to be the Head of the Police. Similarly, the Revenue Divisional Officers will be ex‑officio First Class Magistrates, and the Tahsildars and the Deputy Tahsildars will be ex‑officio Second Class Magistrates. The extent of their magisterial powers will be as indicated in the Schedule of allocation of powers. They will exercise these powers within their respective revenue jurisdictions.”

Paragraph 5 of the 1949 Government order stated that the magistrates who were officers of the Revenue Department would be placed under the control of the Government through the Board of Revenue. It further provided that the Additional District Magistrates (Independent) would also remain under the same governmental control via the Board of Revenue. The order then identified the category of judicial magistrates as consisting of four groups: the District Magistrate, the Sub‑divisional Magistrates, the Additional First Class Magistrates, and the Second Class Magistrates, also known as Sub‑magistrates. The District Magistrate was described as the principal magistrate of a district, entrusted with the overall responsibility for general administration, superintendence, and control over the other judicial magistrates within that district. In addition to these supervisory duties, the District Magistrate possessed special powers under the Code, such as hearing revision petitions, transfer petitions, and appeals from Second Class Magistrates, among other matters. The order further required that each District Magistrate be assigned a specific geographic area, and that the cases arising from that area would normally be dealt with directly by the District Magistrate himself. This whole body of magistrates was placed subordinate to the High Court. Prior to the separation of the judiciary from the executive, the Collector, who headed the Revenue Department, also performed the functions of the District Magistrate. After the separation took effect, the Collector ceased to be the District Magistrate and was redesignated as an Additional District Magistrate.

Part IV of the same Government order dealt with the allocation of powers between judicial and executive magistrates. Paragraph 19(3) of this part addressed the distribution of powers under the Code that were not covered in the earlier paragraphs. It specifically prescribed that the power to grant a pardon under section 337 of the Code of Criminal Procedure was to be exercised by executive magistrates, except in the limited circumstances mentioned in the proviso to sub‑section (1) of that section, where a judicial magistrate was permitted to exercise the power. The order clarified that, notwithstanding this allocation, any magistrate who already possessed the power to grant pardon under Schedule III of the Code would continue to retain that power, and a pardon granted by a judicial magistrate in breach of the order would not be invalidated. The Court noted that this principle was not the central issue in the submissions of Mr Bhimasankaram. He argued that the proviso to section 337(1) conferred the pardon‑granting power exclusively on “the District Magistrate” and not on “a District Magistrate.” Consequently, he maintained that an Additional District Magistrate could not receive that power under sub‑section (2) of section 10. He further contended that, under that provision, only the powers of “a District Magistrate” – meaning those enumerated in Entry 7(a) of Part V of Schedule III – could be transferred to an Additional District Magistrate, and that such powers were distinct from those granted by the proviso to section 337(1). Finally, he asserted that the State Government had not issued any formal direction conferring the District Magistrate’s power to grant pardon upon an Additional District Magistrate.

In this case the Court examined the contention that the proviso to section 337(1) of the Code of Criminal Procedure grants the power to pardon only to “the District Magistrate” and not to “a District Magistrate”. The Court observed that such a distinction lacks substance because the power conferred by subsection (1) of section 337 on the various categories of magistrates is of the same character. It acknowledged that the proviso expressly confers the authority to grant pardon in a case pending before another magistrate on the District Magistrate, but said that when entry 7(a) in Part V of Schedule III refers to the District Magistrate’s power under section 337(1), it does not exclude the power described in the proviso. Consequently, the Court found no justification for drawing a separation between the powers of “the District Magistrate” and those of “a District Magistrate”. The Court further noted that the power of a District Magistrate to grant pardon has been expressly extended to Additional District Magistrates, as demonstrated by section 37 of Schedule III of the Government Order, which reads: “Reference to the District Magistrate in the proviso should be construed as reference to the Executive District Magistrate. Reference to the Magistrate making the enquiry or holding the trial etc., should be construed as a reference to the judicial Magistrate.” The Court interpreted the reference to the Executive District Magistrate as indicating the Additional District Magistrate (Independent). It held that this interpretation constitutes a direction of the Government falling under subsection (2) of section 10 of the Code. Whether this interpretation is wholly correct or not, the Court expressed little doubt that the action of the Additional District Magistrate (Independent) in Visakhapatnam, who granted a pardon to the approver while the enquiry was still pending before the judicial District Magistrate, was undertaken bona‑fide. A pardon granted bona‑fide, the Court noted, is fully protected by section 529 of the Code of Criminal Procedure.

The Court then turned to the judgment of the High Court, which had not examined any of the provisions discussed by the Supreme Court but had held that because the offence was being inquired into by the District Magistrate, the Additional District Magistrate could not usurp the former’s functions and therefore could not grant a pardon. The Court rejected that reasoning, stating that it could not be accepted. Counsel for the State, after his principal argument that the pardon was valid failed, put forward a further line of argument asserting that, even if the pardon were ignored, the approver remained a competent witness. Relying heavily on the decision in Kandaswamy Gounder In re the appellant and on the authorities cited therein, particularly the case of Winson v Queen, counsel argued that where the trial of a person accused jointly with several others is separated from the trial of those co‑accused, the person becomes a competent witness against them, although the weight of his evidence may be questioned. Counsel also invoked section 133 of the Evidence Act, emphasizing that the provision makes accomplice evidence admissible and that an approver whose pardon is later found invalid does not cease to be an accomplice. Hence, the approver would retain the same competency as if no pardon had been granted and he had not been tried. The counsel further highlighted that the case law indicates that, however undesirable it may be to admit the evidence of a co‑accused, such evidence is admissible except when the person is presently on trial for the same offence, and that this principle does not violate the guarantee against testimonial compulsion.

Mr. Chari argued that section 133 of the Evidence Act expressly makes the testimony of an accomplice admissible, and therefore an approver whose pardon is later found to be invalid does not cease to be an accomplice. Accordingly, he contended that such a person remains a competent witness just as he would have been if no pardon had ever been granted and he had not been put on trial. Counsel further cited the authorities I.L.R. 1957 Mad 715 and (1866) L.R. I Q.B., emphasizing that although it may be undesirable to present the evidence of a person jointly charged with others, that evidence is nevertheless competent and admissible, except in the situation where the person is actually being tried for the offence. He maintained that this position does not offend the guarantee against testimonial compulsion, noting that an accused is not required to take an oath when examined under section 342(1) for the purpose of explaining the circumstances appearing in the evidence against him. Mr. Chari explained that if a pardon is offered to an accused and subsequently held to be illegal, the individual reverts to the status of an accused and, being merely an accomplice, would still be a competent witness. He stressed that the issue raised is important and demands serious consideration. In support of his view, he relied upon a large number of Indian and English cases as well as passages from Halsbury’s Laws of England. However, the Court indicated that it did not intend to pronounce on the legal validity of the pardon that was tendered. Regarding the reliability of the approver, the Court acknowledged that an approver has traditionally been regarded as an infamous witness who, having participated in the crime, turns against former associates in order to secure a pardon. The High Court appeared to require that the approver first demonstrate penitence before his evidence could be relied upon; the Court rejected this view, observing that the statutory provision itself shows that the approver’s motivation is the hope of a pardon rather than any noble contrition. The Court concluded that whether the approver’s evidence should be accepted in any particular case must be determined by applying the

The Court explained that the usual tests to be applied to the testimony of an approver include assessing the probability that the statements are true, examining the circumstances in which the approver chose to give evidence, determining whether the approver has made a full and complete disclosure, and considering whether the testimony is merely self‑exculpatory, among other factors. In addition, the Court held that it must be ascertained whether the approver’s evidence has been sufficiently corroborated in material particulars. The essential question, therefore, is whether, after applying all of these tests, the approver’s evidence should be acted upon. The Court then observed that certain documents upon which Mr Chari seeks to rely are not present in the paper book filed before the Court. Granting an adjournment to allow the parties to place those documents on record would require considerable time. Consequently, the Court found it more appropriate to set aside the acquittal of the respondents and to remit the appeal to the High Court for a decision on the merits. The High Court will be bound by the legal findings articulated by this Court on the questions of law that were agitated. It must now examine the entire evidential record and determine for itself whether the evidence is sufficient to prove all or any of the offences alleged against the respondents. The Court noted that the High Court’s observation that the approver’s evidence was treated as unreliable by the learned Additional Sessions Judge is not correct. Although the view of the Additional Sessions Judge is not binding on the High Court, the Court urged the High Court to discard any misconception that the Additional Sessions Judge had disbelieved the approver. The Court further clarified that the decision in Sarwan Singh v. The State of Punjab (1) relied upon by the High Court has been explained by this Court in Maj. E. G. Barsay v. The State of Bombay (1) [1957] B. C. R. 953. In that latter decision, this Court pointed out that while it must be shown that the approver is a witness of truth, the evidence in a case cannot be considered in isolation; even for judging the approver’s credibility, material corroboration of his statements is relevant. The High Court should keep this principle in mind when deciding whether to act upon the approver’s evidence. Moreover, the High Court must not deal with the evidence in a generic manner; it must evaluate the prosecution’s evidence for each specific charge and then determine whether each charge has been established. The prosecution would be well advised, the Court suggested, to concentrate on a limited number of charges rather than attempting to prove a large number of charges against the respondents, thereby saving public time and serving the purpose of the prosecution.

The Court observed that if the prosecution were to pursue each charge except the charge of conspiracy and concentrate its evidence on proving those specific charges, such an approach would conserve public time and would also advance the prosecution’s purpose. The Court explained that focusing on the non‑conspiracy heads of the case would avoid the unnecessary examination of a large number of allegations and would direct the evidentiary burden toward the most material matters. In this manner, the judicial process would be streamlined and the interests of the public would be protected without compromising the integrity of the trial. Accordingly, the Court set aside the trial court’s order of acquittal against the respondents and held that the acquittal could not stand in view of the observations made. The appeal was therefore allowed, and the case was remanded to the High Court for a fresh determination of the merits, taking into account the guidance provided by this Court. The High Court was directed to decide the matter in light of the observations recorded herein and to apply that guidance when assessing the evidence on the remaining charges. The Court further clarified that the remand was intended to enable the High Court to consider the merits of the prosecution’s case without the procedural impediments created by the earlier acquittal. The decision was recorded with reference to the precedent cited as (1) [1962] 2 S.C. R. 195. This order thus combined the reversal of the acquittal, the allowance of the appeal, and the remand for substantive adjudication on the merits.