TMI Blog1936 (7) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... Shome, Bholanath Chatterji and Hardwar Singh, who were originally in the position of being accused persons but later were discharged and called as witnesses on behalf of the prosecution. Certain other persons were alleged to be parties to the conspiracy, namely Aswini Kumar Panja, Nanilal Ghose, Md. Abdul Azim and Bhudeb Chandra Seth, all of whom were stated to be absconders at the time of the trial out of which these appeals arise, and they were subsequently arrested, tried and convicted, and the first three of them are the appellants in the supplementary case. 2. Against Babulal Chowkhani, who is the proprietor of the Bharat Laxmi Cinema which is situate at No. 2, Chittaranjan Avenue, there was a further charge that between April 1934, at the time when the Cinema was started, and 16th January 1935, he committed theft by dishonest consumption or user of electrical energy belonging to the Calcutta Electric Supply Corporation. Against Sailendra Nath Mukherji, Kumud Nath Nandy and Ganesh Bahadur there was a charge of aiding and a betting Babulal Chowkhani in the commission of the offence of theft of electrical energy belonging to the Calcutta Electric Supply Corporation. Sailen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es which he had been entering in two books, one for Central Calcutta and one for North Calcutta. He began to take weekly readings at the Bharat Laxmi Cinema and at the Jupiter Cinema on 4th June 1934, (Exs. 20 and 21). At the Bharat Laxmi Cinema he noticed a decrease in consumption which he reported to his superior officer, one Augustin, who thereupon ordered him to take daily readings at the Bharat Laxmi Cinema. This he did from 20th August 1934 to 4th September 1934 entering readings in a special note-book (Ex. 22). As a result he noted that there were reverse readings on two Mondays on two light and fan meters and also on one electric motor meter. 5. The next event, says the learned Magistrate, which led to the institution of this case, was a matter which was really put before the Court by the defence. This was a letter (Ex. D), dated the 21st September 1934, which purported to have been written by one Chandi Charan Mukherji to the Agent of the Calcutta Electric Supply Corporation, who sent it to the Commissioner of Police, Calcutta, for investigation by the police. In that letter Chandi Charan Mukherji stated that for the previous five or six months the teashop known as Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bholanath Chatterji and Rash Behari Shaw were arrested making a total of the persons arrested up to that time 7. On the 26th December two persons, Hardwar Singh and Panchkori Banerji were arrested. On the 29th December 1934 Kumud Nath Nandy and Saliendra Nath Sanyal were arrested: on 7th January 1935 Harnarain Chatterji was arrested; on the 8th January 1935 Patal Chandra Santra was arrested; and on the 10th January 1935 Ganesh Bahadur, the Darwan at the Bharat Laxmi Cinema. On that same day, that is, the 10th January 1935, the Bharat Laxmi Studio at Tollygunge owned by Babulal Chowkhani was searched by Sub-Inspector Jiban Chandra Chatterji and among the papers seized were six files of vouchers (Exs. 54/1 to 54/6), inside of which were two pay orders (Exs. 12 and 14) with vouchers attached (Exs. 12/2 and 14/2). These pay orders bore the signature of Babulal Chowkhani and he was arrested on the 16th January 1935, and on the 20th January 1935 his Studio was searched for the second time and another pay order bearing his signature was discovered; that is Ex. 16. 7. Of the persons arrested the following made confessions which were recorded by an Honorary Magistrate Rai Bahadur Ashu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ushil Ghosh, Sailen Sanyal, Hara Narayan Chatterji are ex-employees of the Electric Supply Corporation: accomplice witnesses Krishna Chandra Shome and Hardwar Singh are also ex-employees of the Electric Supply Corporation. Those accused persons who do not fall in that category are accused Rash Behari Shaw and Manindra Nath Dey, the accomplice witness Bholanath Chatterji P. W. 2 and the accused Aswini Kumar Panja and Nanilal Ghosh who are awaiting trial after disposal of this case. Babulal Chowkhani is proprietor of the Bharat Lakshmi Cinema and Ganesh Bahadur is durwan of that place. The accused Ganesh Bahadur is durwan of the Jupiter Cinema the proprietor of which Abdul Azim and his servant Bhudeb Chandra Sett are awaiting trial here-after.... 9. The learned Magistrate then proceeded to set out the evidence tendered by the prosecution regarding the association of the accused persons, evidence to show that there was one general conspiracy between all the accused. According to the prosecution case, there were two groups of persons operating: (1) the consumers of the electrical energy and their servants who allowed meter tampering to be done and (2) those who did the actual tamp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Singh. 11. Having dealt with the question as to whether or not there was one extensive conspiracy as alleged by the prosecution the learned Magistrate proceeded to deal with the evidence against each of the persons on trial before him separately and in detail and as a result of his careful survey of the evidence his findings and orders were as follows: 1. The accused Babulal Chowkhani, was found guilty of theft and conspiracy; he was sentenced under Section 39, Electricity Act read with Section 380, I. P. C. to one year's rigorous imprisonment and a fine of ₹ 1,000; in default, six months' rigorous imprisonment. The whole of the fine if realised, would be paid to the Electric Supply Corporation as compensation. There was no separate sentence on the charge of conspiracy. 2. Ganesh Bahadur, his durwan, was sentenced for abetment under Section 39, Electricity Act read with Section 109, I. P. C. to three months' rigorous imprisonment. 3. Jagadish Singh, Durwan of the Jupiter Cinema, was found guilty of conspiracy and abetment of theft; he took a far more prominent part than the durwan of the Bharat Laxmi Cinema. He was therefore sentenced under Section 39, Ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Hardwar Singh being tainted evidence, was not such as ought to be relied upon for the purpose of establishing the case against his client. It is to be observed in this connection, however, that the learned Magistrate himself said (at p. 240 of the paper book, part 1) that he agreed with Mr. Carden Noad's statement on behalf of the defence that in the absence of certain vouchers it would not have been possible to place Babulal Chowkhani in the dock. Mr. Carden Noad as regards the evidence given at the trial further contended that even if there was any such conspiracy as alleged by the prosecution it could not be rightly said that Babulal Chowkhani was in any sense a party to that particular conspiracy. 13. Before dealing further with the evidence in the case, it is desirable that we should discuss and state our views upon the legal grounds. These legal grounds, or, in other words, the points of law which were raised and very fully and ably argued by Mr. Carden Noad, were these: Firstly that there was a misjoinder of charges and that the trial of all the accused persons in one trial was a violation of the principles laid down in Sub-section 233, 234 and 235, Crimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or without directing a re-trial should it think fit: See Dwarka Singh v. Emperor 1915 Cal 743 Mukerji, J. held in Alimuddin Naskar v. Emperor 1925 Cal 341 Even where Sections 235 and 239 of the Code justify a joinder it should not be resorted to if there is a risk of embarrassment to the defence. 16. That is a sound principle which should be borne in mind when charges are framed or indictments preferred against accused persons. It is to be observed at the outset that where there is a conspiracy having one or more objects in view and certain offences are committed in pursuance of such conspiracy, the several offences generally form part of the same transaction within the meaning of that expression as used in Section 235. The principle that where there is a conspiracy and certain offences are committed in pursuance of such conspiracy those several offences will generally form part of the same transaction will also apply where the several offences are by different persons: See Abdul Salim v. Emperor 1922 Cal 107 That case was followed in V.M. Abdul Rahman v. Emperor 1925 Rang 296. The offence of conspiracy and acts done in pursuance of the conspiracy can rightly be said to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re two classes of conspirators or, at any rate, two classes of operators, namely (1) those who did the actual tampering and their adherents and (2) the consumers and their servants who allowed the tampering to be done, or as Mr. Carden Noad put it, that there were tamperers and tamperees. In our opinion the circumstances and facts of the case do not warrant the conclusion that-to use the words of the principal charge-the accused and the other persons named in the charge were all parties to a criminal conspiracy to commit theft (by dishonest consumption or user) of electric energy belonging to the Calcutta Electric Supply Corporation Limited. It seems to us that the first class of operators were in agreement with each other and had in view one object, namely to obtain money unlawfully by tampering with meters whenever possible and the other class had in view the object! of wrongful gain to themselves by allowing tampering of their meters and the making of a false record of the amount of electric energy consumed by them wit consequent reduction in the amount of the bills they would have to pay to the Calcutta Electric Supply Corporation. In our opinion upon the evidence there is ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as set forth in the charges and if according to that case the offences are such as could be regarded as parts of the same transaction, it will be justified in holding a joint trial. One of the earliest cases on this point is Emperor v. Datto Hanmant Shahpurkar (1906) 30 Bom 49, where the meaning of the word 'transaction' was discussed and Batty, J. at p. 54 said: According to its etymological and dictionary meaning the word 'transaction' means 'carrying through' and suggests, we think, not necessarily proximity in time, so much as continuity of action and purpose. The same metaphor implied by that word is continued in the illustrations where the phrase used is 'in the course of the same transaction.' In Section 235, the phrase is used in a connection which implies that there may be a series of acts. Illus. (f) to that section indicates that the successive acts may be separated by an interval of time and that the essential is the progressive action, all pointing to the same object. In Section 239 therefore a series of acts separated by intervals of time are not, we think excluded provided that those jointly tried have throughout been directed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for conspiracy. This contention is supported by authority of decisions of this Court. In Superintendent and Remembrancer of Legal Affairs, Bengal v. Mon Mohan Roy 1915 Cal 688 it was held that the offence of conspiracy and offences committed in pursuance of that conspiracy formed one and the same transaction, and could be jointly tried. It was also so held in Harsha Nath Chatterjee v. Emperor 1915 Cal 719 and both these cases were cited and approved in Amrita Lal Hazra v. Emperor 1916 Cal 188 These decisions fully support the contention raised on behalf of the Crown, and we hold that there was no misjoindor of charges in the present case that would render the trial illegal. It is also urged that, even if this misjoinder did not render the trial illegal, the Court had liscretion, under Section 239, Criminal P. C. to try the accused separately, and this discretion was improperly exercised. But even if this be regarded as an irregularity it cannot be held to have occasioned a failure of justice. There is not the same objection to the joinder of a number of charges in a conspiracy trial that there might be in other cases, since, even if they had not been charged, the offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Section 239, Criminal P. C., did or did not authorize him, not merely to try the 225 accused persons before him at one and the same trial, but to try them on each and all of the charges set forth against them under the order of the committing Magistrate, he could not possibly know what conclusion he would arrive at after hearing the whole of the evidence. He had to look to the case for the prosecution as set forth in the charges themselves. He was therefore for the reasons which we have already indicated warranted by law in entering upon this trial of the 225 accused on the charges as framed. The convictions which he has recorded are warranted by the conclusions at which he arrived on the evidence. As he had to regard merely the charges it was not necessary for him to consider what the position would be, if he had eventually come to the conclusion, either that no offence punishable under Section 120-B, I. P. C. was committed by any persons at Dumri Khurd on the forenoon of 4th February 1922, or that if any offence was so committed it was one excluded from his cognizance by Section 196-A, Criminal P. C. In any event, the acquittal of all the accused persons on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are relevant to the question whether in the present case there was any conspiracy. The case in the Madras High Court was decided in October 1924. A few months later, namely in December 1924, the same point came before the High Court of Rangoon in V.M. Abdul Rahman v. Emperor 1925 Rang 296, where it was again held that the legality of a joint trial depends on the accusation and not on the result of the trial. The Chief Justice also added on the authority of the case in Abdul Salim v. Emperor 1922 Cal 107 that the discretion of the Court to try accused persons separately is not improperly exercised by holding a joint trial in conspiracy cases (P. 105). 28. The point under discussion again came before this Court in the year 1928 when in Kali Kumar Das v. Nawab Ali Dhali 1929 Cal 160 it was held by Cuming and Lort-Williams, JJ. that: Section 239, Sub-section (d), Criminal P. C., contemplates all the offences committed by the accused persons, whether substantive offences or abetment of those offences, being tried together provided they were committed by the accused in the course of the same transaction. Therefore two persons can be jointly tried on three substantive charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 235. As is often the case with a number of elaborate charges, it is difficult to lay down any single test or criterion. The cases, in my opinion, divide themselves into three. First, a case such as the one in Subrahmania Ayyar v. Emperor (1902) 25 Mad 61, not covered by Section 235 or Section 239, in which case, prejudice or no prejudice, the illegality entitles the appellant to an acquittal. The second case is where without such illegality, prejudice might nevertheless be caused to the accused so that even though the Crown may have the power of joinder, it might be fairer not to exercise that power. The third class of cases is where there is such a common thread or purpose underlying the alleged offences of the accused, even though separated by time and space, that they form part of the same transaction, and are difficult to present separately, in which case the law permits, and the Crown usually adopts, a joint trial with numerous accused and numerous charges. The question in each particular instance is as to which of these three classes of cases covers the particular case for decision. In the present instance the question turns upon whether the offence now under appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... habad High Court in Ramdas v. Emperor 1934 All 61 where Rachhpal Singh, J. said at p.1353: Here at one trial the accused persons were charged with conspiracy and some other offences said to have been committed in the furtherance of the object of the conspiracy. The charge was perfectly correct. Accused persons may be charged at one trial with the offence of conspiracy and also with the offence alleged to have been committed in pursuance of the conspiracy because substantively the offence of conspiracy and the offences committed in pursuance thereof form one and the same transaction. Such a joint trial is permissible under the provisions of Section 239, Criminal P. C. 32. Finally, in a recent case before this Court, the case in The Superintendent and Remembrancer of Legal Affairs v. Raghulal Brahman (1935) 62 Cal 946 Lort-Williams, J., sitting with Jack, J. said at p. 743: It is to be observed that the provisions of Section 239, Clause (a) and (c), refer to persons accused, that is to say, charged. The provisions are intended to deal therefore with the position as it exists at the time of charge and not with the result of the trial. 33. In view of this long line ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section is no doubt based on an analogous provision in the English Electric Lighting Act of 1882 (45 Vict. Ch. 56) Section 23 which reads as follows: Any person who maliciously or fraudulently abstracts, causes to be wasted or diverted, consumes, or uses any electricity shall be guilty of simple larceny and punishable accordingly. 36. In the Indian Act wasting or diverting energy is dealt with in Section 40. That section is in these terms: Whoever maliciously causes energy to be wasted or diverted or, with intent to cut off the supply of energy, cuts or injures, or attempts to cut or injure, any electric supply line or works, shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both. 37. In England the provisions which were formerly contained in Section 23 of the Act of 1882 are now to be found in the Larceny Act, 1916, Section 10 which runs as follows: Every person who maliciously or fraudulently abstracts, causes to be wasted or diverted, consumes or uses any electricity shall be guilty of felony, and on conviction thereof liable to be punished as in the case of simpl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad said that Section 19 (a), Electricity Act, and Rule 31 were necessitated by the fact that there can be no actual property in electrical energy. At the same time, he argued that as a man cannot steal what is his own there cannot be any theft of electrical energy once it passes through the meter installed on the consumer's premises, because in effect Section 19 (a) and Rule 31 in law operated to transfer some sort of property in the electrical current supplied. Mr. Carden Noad sought to fortify his argument by reference to Section 78, Contract Act (Act 9 of 1872), which, he said, governed the contract for the supply of the electrical energy as between the Calcutta Electric Supply Corporation and Babulal Chowkhani. Section 78, Contract Act, 1872 is now reproduced in Section 5, Sale of Goods Act, 1913. Sir Frederick Pollock and Sir Dinshaw Mulla in their commentary on that Act express the view that it is doubtful whether the Act is applicable to such things as gas, water and electricity. In our opinion, that view is correct, certainly as regards electricity. It is, therefore, not possible for Mr. Carden Noad to derive any support by reference to the law relating to the sale of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Wrongful gain is defined in Section 23, I. P. C., as gain by unlawful means of property to which the person gaining is not legally entitled. And wrongful loss is said to be loss by unlawful means of property to which the person losing it is legally entitled. In the present case upon the assumption that the allegations against Babulal are correct, he used electricity in such a way as to cause a wrongful loss of money to the Calcutta Electric Supply Corporation and so, in effect, wrongful gain to himself. The consuming of the electricity and the regular causing of the record of that use in the shape of the figures on the dials in the meters to be altered was, therefore, a dishonest user. The argument that as the electrical energy was being supplied under a contract, the consumer was merely using the electricity in a manner contemplated by the contract and that the tampering with the meters was something altogether distinct and separate from user cannot hold good. It obviously was never contemplated by the contract between the Calcutta Electric Supply Corporation and the Bharat Lakshmi Picture House, for example that there should be any supplying of electricity otherwise th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... domino? 45. In the present case it seems to us that consuming or using was invito domino in the sense that the Corporation never permitted or contemplated that electricity would be consumed or used save on the basis that the consumer would allow a correct and accurate record of the consumption and user to be made upon the meter and preserved until that record could be seen by the officer of the Electric Supply Corporation. There can be no doubt whatever in our opinion that the facts alleged against Babulal Chowkhani, if established, were sufficient to bring him within the words of Section 39 and that he must be deemed to have committed theft within the meaning of the Indian Penal Code. No doubt, they would also constitute an offence of cheating as defined in Section 415, I. P. C., and indeed Mr. Carden Noad did not dispute this. He merely took the same kind of line as was taken by Sergeant Ballantine in Reg v. White (22) ubi supra namely that the offence was one of cheating and not one of theft. As a final point of law, Mr. Carden Noad endeavoured to argue that the offence committed by his client if any fell within the ambit of the provisions of Section 44, Electricity Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k that for the purpose of Section 26, General Clauses Act, it must be taken that Sub-section 39 and 44, Electricity Act, are to be considered as separate enactments: see Section 3, Sub-section 17, General Clauses Act. There can therefore be no doubt that it was quite open to the prosecution to charge the accused Babu Lal Chowkhani with such offences as the facts and circumstances seem to warrant. All the points of law put forward and argued by Mr. Carden Noad on behalf of Babulal Chowkhani were adopted and relied upon but without further argument by the learned advocates appearing for the other appellants respectively. Having disposed of all the legal points put forward on behalf of the appellants, and having held that the trial was not illegal by reason of any misjoinder of charges or of the joint trial, it becomes necessary to be considered whether upon the facts all the convictions or some and which of them ought to be upheld. We have already expressed the opinion that it was not proved that the accused were all parties to one large conspiracy. 48. It now becomes necessary to consider the facts. We are not at all sure that Mr. Page (appearing on behalf of the Crown in suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter (to destroy the evidence of theft). The essential ingredient was theft by dishonest user. Without the common object of the parties, the making of gain, the agreement could not have come into existence. But that though the gain was the ultimate object, the subsidiary but necessary object was the commission of the theft by the consumer. In our view the situation, as now appears from a survey of the whole of the evidence in the case, is that in all probability there was a conspiracy or, at any rate, a close association between all the tamperers as such, and an agreement between each individual consumer and his assistants including members of his own staff and the particular tamperers who brought about all the tampering. Holding as we do that it was not established that there was any conspiracy of the kind mentioned in the charge laid under Section 120-B, I. P. C., it follows that the convictions on the conspiracy charge must be set aside. 51. It then becomes necessary to determine whether and to what extent the convictions of the appellants on the other charges can be maintained. At the outset it is to be borne in mind that although these appeals are upon questions of fact as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 39, Electricity Act read with Section 379, Penal Code. Babulal Chowkhani must surrender to his bail and serve out the sentence imposed upon him. (The judgment then discussed the evidence with regard to the other accused and proceeded.) It is perhaps desirable that we should observe at this point that although we have held that there was no misjoinder of charges or mistrial of the appellants by reason of the framing of the conspiracy charge and combining that charge with certain other charges against certain of the accused persons, there is at the present time in this province too great a tendency to make charges against a number of persons that they were parties to a conspiracy and so guilty of an offence under Section 120 B, Penal Code, in circumstances where charges of ordinary substantive offences would be enough. The result is that what ought to be comparatively short and simple cases become long, complicated and unwieldly and instead of being disposed of quickly, drag on for a very long time Moreover, there are, as we know, certain obvious advantages which the prosecution may derive and sometimes unfairly derive, from the existence of a charge of conspiracy covering a numb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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