Sunil Kumar Paul vs State of West Bengal

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

Court: supreme-court

Case Number: Criminal Appeal No. 156 of 1961

Decision Date: 6 March 1964

Coram: Raghubar Dayal, K.C. Das Gupta

In the matter titled Sunil Kumar Paul versus State of West Bengal, the Supreme Court delivered its judgment on the sixth day of March, 1964. The opinion was authored by Justice Raghubar Dayal, who sat on the bench together with Justice K.C. Das Gupta. The parties to the proceedings were identified as Sunil Kumar Paul, the petitioner, and the State of West Bengal, the respondent. The judgment was recorded under the citations 1965 AIR 706 and 1964 SCR (7) 70, with a further citator reference of D 1967 SC 752 (19). The case concerned an offence alleged under section 409 of the Indian Penal Code, which had been allotted for trial before a Special Court. That Special Court was presided over by a Special Judge appointed under the Criminal Law Amendment Act, with the authority to try offences that fell within the scope of the Criminal Procedure Code in the same trial. The High Court subsequently altered the conviction to an offence under section 420 of the Indian Penal Code, raising the question of the legality of such alteration given the absence of a formal charge under section 420. The statutory framework cited included sections 409 and 420 of the Indian Penal Code of 1860, sections 236 and 237 of the Code of Criminal Procedure of 1898, and section 4(2) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949.

The factual backdrop recorded that the Special Judge had tried and convicted the appellant for the alleged offence under section 409, imposing a term of rigorous imprisonment for two years together with a monetary fine of two thousand rupees. On appeal, the High Court modified the conviction, holding that the appellant had committed cheating on the employees of the State Bank by presenting a bill as if it were a genuine bill drawn by the Sub‑Divisional Health Officer, thereby dishonestly inducing the bank’s staff to transfer the sum of one thousand seven hundred sixty‑three rupees and six annas to him. The High Court consequently sentenced him to one year of rigorous imprisonment and affirmed the fine of two thousand rupees. The appellant, through a certificate of appeal, raised three principal contentions. First, he argued that a case under section 420 could not be assigned to a Special Court by the Government because the offence was not committed by a public servant while purporting to act as such. Second, he maintained that the Special Court lacked the authority to invoke section 237 of the Code of Criminal Procedure, and even if it could, the statutory conditions of that provision had not been met, rendering the High Court’s alteration of the conviction invalid. Third, he contended that he had suffered prejudice due to the failure to frame a charge under section 420 and the consequent lack of a trial on that specific charge.

The Court concluded that, on the basis of the evidence presented, the offence under section 420 was indeed committed by the appellant in the guise of a public servant, and therefore a case involving that offence could have been appropriately allotted to the Special Court by the Government for trial. Accordingly, the Special Court possessed the jurisdiction to try the appellant for the offence under section 420, a position reinforced by the proviso to section 4 of the West Bengal Criminal Law Amendment (Special Courts) Act. The Court held that the Special Court was competent to try the appellant for the alleged cheating offence, and that the alteration of the conviction by the High Court was legally permissible under the relevant procedural provisions.

In the present matter the Court examined the applicability of several provisions of the Code of Criminal Procedure and the West Bengal Criminal Law Amendment Act. The Court distinguished the earlier decision of Bhajahari Mondal v. State of West Bengal, reported in the 1959 Supreme Court Reports at page 1276, because the facts of that case differed materially from the case before it. The Court observed that when an accused is tried for an offence punishable under section 409 of the Indian Penal Code, the trial court may also frame a charge under section 420 of the Indian Penal Code if the circumstances justify such a charge under section 236 of the Code of Criminal Procedure. The Court noted that, according to the proviso to subsection (1) of section 4 of the West Bengal Criminal Law Amendment Act, a Special Court has the authority to try a person for an offence punishable under section 420, even though in the present proceedings that particular charge was not formally framed or tried. Nevertheless, the Court held that both the Special Court and the appellate court possessed the power to convict the accused of the offence under section 420 on the basis of the findings recorded in the trial, invoking section 237 of the Code of Criminal Procedure. The Court further concluded that the accused could not claim prejudice arising from the absence of a specific charge under section 420, because the procedural requirement of framing that particular charge was not indispensable; the conviction for the offence under section 420 was permissible wherever the evidence on record supported such a finding.

The appeal arose from a judgment and order dated 15 June 1961 issued by the Calcutta High Court in Criminal Appeal No. 745 of 1959. The appellant, Sunil Kumar Paul, obtained a certificate under article 134(1)(c) of the Constitution and consequently filed Criminal Appeal No. 156 of 1961 before this Court. The appellant’s counsel represented him, while counsel for the State presented the opposing case. The judgment was delivered on 6 March 1964 by Justice Raghu Bar Dayal. The factual background disclosed that the appellant served as a clerk in the office of the Sub‑Divisional Health Officer at Barrackpore during the years 1955‑56. In his official capacity the appellant was responsible for preparing financial bills, submitting them to the Sub‑Treasury, and thereafter presenting them to the State Bank at Barrackpore for cash payment, the receipts of which were to be handed over to the Sub‑Divisional Health Officer. The bills were categorized under various headings, including “38‑Medical” and “39‑Public Health,” among others. On 5 October 1956 the appellant produced a bill amounting to Rs 1,769, of which Rs 5.10 was to be credited to the Postal Life Insurance ledger and the remaining Rs 1,763.6 was to be paid in cash. The Sub‑Treasury approved the bill, and the following day, 6 October 1956, the bank released the cash sum of Rs 1,763.6 to the appellant. The appellant retained the cash and failed to deliver it to the Sub‑Divisional Health Officer. The records of the Sub‑Divisional Health Officer’s office showed that no corresponding bill had been recorded as having been submitted to the Sub‑Treasury and the bank for payment, indicating a discrepancy between the amounts paid by the bank and those accounted for by the health officer’s administration.

The Sub‑Divisional Health Officer recorded that his office had not prepared or submitted any bill to the Sub‑Treasury and the Bank for payment. Nevertheless, a bill containing almost the same items as the one that was cashed on 6 October was actually presented on 1 October 1956. That earlier bill amounted to Rs 1,767, of which Rs 5‑10‑0 were to be credited to the Postal Life Insurance ledger and the remaining Rs 1,761‑6‑0 were to be paid in cash. The cash amount was received on 1 October and was promptly handed over to the Sub‑Divisional Health Officer. It is relevant to note that the bill cashed on 1 October 1956 had originally been drawn for Rs 1,769, with a cash portion of Rs 1,763‑6‑0, but before it was encashed a correction was made that reduced the total amount by Rs 2 and therefore also reduced the cash portion by the same amount. The presentation of a bill for encashment of Rs 1,763‑6‑0 on 6 October 1956 came to the attention of the Sub‑Divisional Health Officer after the Accountant General raised the issue. An enquiry by the Officer disclosed that his office had never presented such a bill for encashment and that no cash of that amount had been received by him. The discovery prompted a complaint, further enquiries and an investigation that ultimately resulted in the prosecution of the appellant. The Government referred the matter to a Special Judge under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 because the conduct was alleged to constitute an offence punishable under section 409 of the Indian Penal Code. The Special Judge tried the appellant for that offence, convicted him and imposed a sentence of two years’ rigorous imprisonment together with a fine of Rs 2,000. The appellant appealed the conviction to the High Court of Calcutta. The High Court accepted the appellant’s contention that the facts did not satisfy the elements of section 409, but it held that the appellant had provenly committed an offence under section 420 of the Indian Penal Code. Accordingly, the High Court altered the conviction from section 409 to section 420, finding that the appellant had cheated the employees of the State Bank, Barrackpore, by representing that the bill of Rs 1,769 gross and Rs 1,763‑6‑0 cash drawn on 6 October 1956 was a genuine bill prepared by the Sub‑Divisional Health Officer, thereby dishonestly inducing the bank staff to hand over the cash sum to him. The High Court sentenced the appellant to one year’s rigorous imprisonment and a fine of Rs 2,000. The appellant challenged that order by filing the present appeal. The High Court’s factual findings were deemed sufficient to support the conclusion that the appellant had committed the offence under section 420, and the appellant’s counsel advanced several points of contention in support of the appeal.

The appellant argued that a charge under section 420 of the Indian Penal Code could not be assigned to a Special Court by the State Government because the alleged offence was not committed by a public servant while pretending to act as such a public servant. He further contended that the Special Court was not authorized to rely on the provisions of section 237 of the Code of Criminal Procedure, and even if it could, the conditions prescribed in that provision were not met in the present case. Consequently, the appellant submitted that the High Court had no authority to change his conviction from an offence under section 409 of the Indian Penal Code to an offence under section 420. The appellant also maintained that the prosecution had neither alleged nor proved the essential elements of an offence under section 420. Finally, he claimed that he had suffered prejudice because the charge sheet omitted the necessary allegations and failed to frame a charge for an offence under section 420, and that the remedy provided by section 537 of the Code of Criminal Procedure could not cure this defect in the trial.

To consider the first contention, the Court referred to the relevant provisions of the Special Courts Act. Section 4(1) of the Act stated that, notwithstanding anything in the Code of Criminal Procedure, 1898, or any other law, the offences listed in the Schedule were to be tried exclusively by Special Courts, although a Special Court could also try any other offence with which the accused might be charged at the same trial under the Code of Criminal Procedure. Section 4(2) provided that the State Government would distribute among Special Courts the cases involving the offences specified in the Schedule for trial by those courts. Section 5(2) clarified that, except as provided in subsection (1), the provisions of the Code of Criminal Procedure, 1898, applied to the proceedings of a Special Court to the extent that they were not inconsistent with the Act, and that a Special Court was to be deemed a Court of Session trying cases without a jury, with the prosecutor deemed to be a Public Prosecutor. The Schedule listed two relevant entries: entry 2 defined an offence punishable under section 409 of the Indian Penal Code when committed by a public servant or by a person dealing with government property as an agent of the Government; entry 3 defined an offence punishable under section 417 or section 420 of the Indian Penal Code when committed by a public servant or by a person dealing with government property as an agent, while purporting to act as such public servant or agent. The Court noted that the notification from the Government assigning the present case to a Special Court was not placed on the record, and therefore its exact contents could not be stated with certainty.

The exact wording of the Government notification that allotted the case to the Special Court could not be determined with certainty. Nevertheless, it may be reasonably inferred that the notification identified the offence as falling under section 409 of the Indian Penal Code, and it possibly omitted the detailed facts needed to establish that offence against the appellant. Section 409 of the Indian Penal Code is listed in the Schedule referred to in sub‑section (2) of section 4 of the Act. Accordingly, the State Government possessed the authority to assign a case involving that particular offence to the Special Court. In fact, the State Government was obligated to refer the matter to the Special Court pursuant to the provision of sub‑section (1) of section 4, which mandates that offences enumerated in the Schedule are to be tried exclusively by Special Courts.

The remaining issue, therefore, was whether the Special Court was also empowered to try the appellant for an offence under section 420 of the Indian Penal Code. Section 420, when committed under specific circumstances, is likewise listed in the Schedule and is required to be tried by Special Courts only if the offence is committed by a public servant while purporting to act as such. There is no dispute that the appellant was a public servant, a fact that remained undisputed throughout the proceedings.

Counsel for the appellant argued that the phrase “while purporting to act as such public servant” should be interpreted to mean “while purporting to act in the discharge of official duties,” contending that the presentation of a false bill could not be considered an act performed in the discharge of official duties. While it is possible that the false bill was not presented in the ordinary discharge of duties, the question before the Court was whether the false bill was presented by the public servant purporting to act in the performance of his duties. The appellant had indeed presented the false bill claiming that it was made in the discharge of his duties as a clerk in the Office of the Sub‑Divisional Health Officer, a position that authorized him to present bills and to receive cash.

The appellant relied upon the decision reported as Bhajahar Mondal v. The State of West Bengal(1) to argue that he should not have been tried by the Special Court for the offence under section 420 when the case had originally been allotted as one involving an offence under section 409. The Court noted that the facts of the cited case were markedly different. In that case, the order allocating the matter specified that the accused was to be tried for an offence under section 161 read with section 116 of the Indian Penal Code, and the order was dated 27 November 1952. Prior to that date, on 28 July 1952, the Criminal Law Amendment Act XLVI of 1952 had created a distinct offence of abetment under section 165‑A of the Indian Penal Code. Importantly, offence 165‑A was not listed in the Schedule to the Act as it existed on 27 November 1952. The Court further observed that in that earlier judgment, the Court had held that the Government’s notification transferring the case to the Special Court was defective because the offence referred to did not exist in the Schedule at that time.

In the present appeal the Court observed that the earlier case involved a notification that referred to an offence which did not exist at the time, but that circumstance did not apply to the present Government notification. At the date of that notification an offence punishable under section 409 of the Indian Penal Code was in force and it was specifically listed in the Schedule to the Act. The evidence established beyond doubt that the appellant had presented a bill for the amount of Rs 1,763‑6‑0 to the State Bank on October 6, claiming to act as the clerk of the Sub‑Divisional Health Officer. The bill was presented on behalf of that officer, and the bank subsequently paid the amount to the appellant, who was the officer’s messenger duly authorised to receive cash payments. From those facts the Court inferred that the appellant, by falsely representing himself as a public servant, had committed the offence of cheating under section 420 of the Indian Penal Code. Consequently the State Government was entitled to assign the matter to the Special Court for trial, and the Special Court therefore possessed the jurisdiction to try the appellant for that offence, provided the proved facts supported the charge.

Beyond the consideration that the cheating offence for which the appellant had been convicted was included in the Schedule, the Court held that the Special Court could also try the appellant for the section 420 offence pursuant to the proviso to section 4. The proviso empowers the Special Court, when it is trying a case that involves an offence enumerated in the Schedule, to try any other offence against the same accused in the same trial, in accordance with the provisions of the Code of Criminal Procedure. Accordingly, the appellant could be charged with an offence under section 420 of the Indian Penal Code in the same trial that addressed the offence under section 409 of the Indian Penal Code. This course of action was permissible under sections 236 and 237 of the Criminal Procedure Code.

The appellant contended that the provisions of section 236 of the Criminal Procedure Code applied only in situations where the facts were unambiguous and the doubt concerned which of several offences could be sustained on those facts. The Court reproduced the text of sections 236 and 237, which provide that when a single act or series of acts may constitute several different offences, the accused may be charged with all, any, or an alternative of those offences, and that multiple charges may be tried together. Moreover, if evidence shows that the accused committed an offence different from the one originally charged, the Court may convict the accused of the offence actually proven, even if it was not originally charged. The Court cited the illustration that a person accused of an act that could amount to theft, receiving stolen property, criminal breach of trust, or cheating may be charged with any or all of those offences.

Section 237 of the Code of Criminal Procedure provides that when, in a case covered by section 236, the accused is formally charged with one offence and the evidence later shows that he actually committed a different offence that could also have been charged under the provisions of section 236, the court may convict him of the offence that the evidence demonstrates, even though that particular offence was not part of the original charge. The section is illustrated by a situation where a person named A is charged with theft, but the evidence reveals that he actually committed criminal breach of trust or received stolen goods. In such a circumstance, the court is empowered to convict A of criminal breach of trust or of receiving stolen goods, as the case may be, despite the fact that those offences were not listed in the original charge.

The Court explained that the process of framing a charge under section 236 necessarily occurs before it can be definitively said which facts will be proved at trial, a determination that is only made when the judgment is rendered. Consequently, the authority to frame the multiple charges contemplated by section 236 arises at a stage when neither the prosecutor nor the Court can state with certainty which specific facts will be established. At the time of framing the charge, the Court must therefore examine the allegations set out in the prosecution’s complaint, in the charge‑sheet submitted by the investigating agency, or in the statements of prosecution witnesses taken before the charge is framed. Any offence that could reasonably be inferred from those allegations may be included as a charge under section 236, provided there remains genuine doubt as to which offence the ultimately proved facts will constitute. In the present matter, the relevant allegations prior to charge‑framing were those contained in the charge‑sheet filed by the investigating officer of the 24‑Parganas district, which appears on page three of the record. That charge‑sheet recorded that on 6 October 1956 Sunil Kumar Paul, a clerk employed by the office of the Sub‑Divisional Health Officer at Barrackpore, dishonestly withdrew rupees 1,763‑6‑0, excluding a Postal Life Insurance deduction of rupees 5‑10‑0, from the State Bank of India, Barrackpore branch, by submitting a false duplicate establishment pay bill for the said health officer’s office. The withdrawn amount was not credited to the Sub‑Divisional Health Officer’s office. The Special Court relied on these facts to secure a conviction of the appellant under section 420 of the Indian Penal Code. The Court observed that, based on those very facts, the Special Court could have appropriately framed a charge under section 420 of the Indian Penal Code at the appropriate stage of the proceedings.

In this case, the Court examined whether the facts described in the charge‑sheet gave rise to an offence under section 409 of the Indian Penal Code or to an offence under section 420 of the Indian Penal Code. The Court observed that, if there was any doubt about which provision applied, the trial Court could still have framed a charge under section 420 by virtue of section 236 of the Criminal Procedure Code. Consequently, the appellate Court could, in law, convict the appellant of the cheating offence under section 420 instead of the alleged dacoity offence under section 409, provided that the evidence established the cheating. This approach corresponded with the provisions of section 237 of the Criminal Procedure Code. The Court referred to the authority of Begu v. The King Emperor (1), where Viscount Haldane explained the effect of sections 236 and 237, stating that a person may be convicted of an offence even when no formal charge for that offence was made, if the evidence would support such a charge. The illustration of that case showed three men convicted of interfering with evidence, although they had not been formally charged with that specific offence, and the conviction was sustained on the basis of section 237. The Court noted that this principle had been approved by this Court in Ramaswamy Nadar v. The State of Madras (2). In the latter case, the accused, who had been acquitted of an offence under section 420, was later convicted by the High Court of an offence under section 403; the Supreme Court held that the High Court was competent to make that conviction, even though the facts did not ultimately prove section 403. The Court also considered the judgment in State of Andhra Pradesh v. Kandimalla Subbaiah (3), which held that a Special Judge appointed under section 6 of the Criminal Law Amendment Act (XLVI of 1952) possessed jurisdiction to try cases under section 5 of the Prevention of Corruption Act, and, under section 7(3) of the same Act, could also try any other offence under the Code of Criminal Procedure if the accused could be charged with it at the same trial. Accordingly, the Special Judge was authorised to try the accused for offences under section 120B read with sections 466, 467 and 420 of the Indian Penal Code, as well as for the offences of abetment under the Prevention of Corruption Act. In support of his arguments, the learned counsel for the appellant cited the decision reported as Nanak Chand v. The State of Punjab.

In the case of State of Punjab (1), the Court recorded at page 1212 a statement that the provisions of section 236 of the Code of Criminal Procedure could be invoked only when the facts proved left no doubt, but a doubt existed as to which of several offences had been committed on those proved facts; in such situations, any number of charges could be framed and tried, or alternative charges could be framed. The Court further observed that in the present case there was no doubt about the facts, and that if the allegation that the appellant had caused injuries to the deceased with a takwa was established by evidence, then there could be no doubt that the offence of murder had been committed. The present Court noted that this passage did not assist the appellant’s contention because, according to the Court of Punjab, the allegations, if proved, would establish only the offence of murder, leaving no room for doubt about the nature of the offence and consequently precluding the application of section 236 of the Code of Criminal Procedure. The Court then recounted the factual background of that earlier case: the appellant had been tried together with others for an offence under section 302 read with section 149 of the Indian Penal Code. The Sessions Judge convicted the appellant and several others under section 302 read with section 34 of the Indian Penal Code. The High Court subsequently acquitted the other accused and altered the appellant’s conviction to the offence under section 302 alone. In that context, the Supreme Court had held that because the specific allegation was that the appellant had struck the deceased with a takwa, there was no doubt that the fact constituted an offence under section 302 and not an offence under section 302 read with section 149. Applying that reasoning, the Court now held that at the trial of the appellant for an offence under section 409 of the Indian Penal Code, the appellant could also have been charged with an offence under section 420 of the Indian Penal Code, in view of section 236 of the Code of Criminal Procedure. The Court then considered the appellant’s argument that, under the proviso to section 4 of the Special Courts Act, a Special Court could try any other offence only when the accused was specifically charged with that offence. The Court rejected that interpretation, explaining that the language of the proviso did not impose such a limitation. Rather, the proviso allowed trial for any other offence provided the accused could be charged with that offence at the same trial under the provisions of the Code of Criminal Procedure. The proviso did not require that a charge be formally framed, although, in practice, a trial Court that proceeds against an accused for a particular offence would ordinarily frame a charge. The Court clarified that the proviso merely empowered a Court to try the accused for the additional offence and did not affect the power of the trial Court or an appellate Court to record a conviction for any other offence when the accused was being tried for an offence listed in the Schedule.

The Court explained that its ability to rely on provisions allowing a conviction for an offence that had not been formally charged was conditioned by other relevant provisions of the Code of Criminal Procedure and by the special enactment itself. Section 5(2) of the special enactment declared that every provision of the Code of Criminal Procedure, to the extent that it was not inconsistent with the special enactment, would govern the proceedings of the Special Court, and for the purposes of those provisions the Special Court could be treated as a Court of Sessions. The Court observed that nothing in section 237 of the Code of Criminal Procedure conflicted with the provisions of the special enactment. Section 237, as the Court noted, simply authorised a Court to convict an accused of an offence that he could have been charged with under section 236, even though the accused had not been formally charged with that offence. The provision dealt specifically with the final orders that a Court could pass after a trial for a particular offence had been concluded. Consequently, the Court held that, in accordance with the proviso to sub‑section (1) of section 4, the Special Court possessed the jurisdiction to try the appellant for the offence punishable under section 420 of the Indian Penal Code, although it had not actually conducted a trial for that offence.

The Court further observed that, notwithstanding the fact that the Special Court did not try the appellant for the offence under section 420, both the Special Court and the appellate Court remained empowered to record a conviction for that offence when the appellant was being tried for the offence under section 409, by virtue of section 237 of the Code. It rejected the appellant’s contention that the proviso to section 4 barred the Special Court from trying an offence that was independent of the offence specified in the allotment order, and therefore limited the Court’s jurisdiction to offences somehow connected to the offence under section 409. The appellant also argued that the essential elements of the offence under section 420 were entirely different from those of the offence under section 409, and that this disparity made any relational test unnecessary. The Court clarified that its task, for the purpose of the proviso, was to ascertain whether the accused could, under the Code, be charged with any offence other than the one mentioned in the allotment order, and not to impose any additional limitation beyond what the Code itself provided. The Court found no language in the proviso that would impose restrictions other than those already laid down by the Code of Criminal Procedure on the nature of offences that the Special Court could try. Accordingly, the Court concluded that the Special Court was competent to try the appellant for the offence under section 420 of the Indian Penal Code, and affirmed that the High Court was correct in altering the appellant’s conviction from that under section 409 to that under section 420. The Court reiterated that this conclusion was consistent with the earlier discussion of the relevant statutory provisions.

The charge sheet alleged that the appellant had presented a false bill to the State Bank of India and had caused it to be encashed. The Court observed that this allegation alone satisfied the element required for the offence punishable under section 420 of the Indian Penal Code. It was not necessary for the prosecution to prove that the appellant himself had prepared the false bill in order to sustain a conviction under that provision. Moreover, the Court noted that such a specific allegation could not be made in the present case because the bill that was allegedly cashed on 6 October could not be located or traced. The act of presenting a bill for encashment inherently conveys a representation that the bill is genuine, and therefore the allegations attributed a misrepresentation to the appellant at the time of presentation. The Court further explained that had the bill been genuine, the appropriate charge would have been under section 409 of the Indian Penal Code rather than section 420. Consequently, the Court held that the appellant could not be said to suffer prejudice because the charge under section 420 was not framed and consequently no separate trial on that charge took place. In the facts, the Court found no irregularity in the trial, noting that the requirement of framing the charge under section 420 was not essential because section 237 of the Code of Criminal Procedure permitted conviction if the offence was proved by the record. The appellant’s final contention was that the sentence imposed—one year of rigorous imprisonment and a fine of two thousand rupees—was unduly severe. The Court rejected that submission, holding that the punishment was not disproportionate to the offence and therefore was appropriate. Accordingly, the Court dismissed the appeal and ordered that the conviction and sentence stand.