TOPANDAS versus THE STATE OF BOMBAY

TOPANDAS

THE ST ATE OF BOMBAY

[BttAGWATI, VENKATARAMA AYYAR and B. P. SINHA JJ.]

Indian Penal Code (Act XLV of 1860), ss. 120-A, 120-B-Cri-min,i/ conspiracy-Two or more persons must be parties thereto--Onc person alone cannot be held guilty-If other alleged co-conspirators .are acquitted of the charge.

According to the definition of criminal conspiracy in s. 120-A .of the Indian Penal Code two or more persons must be parties to such an agreement and one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot con-spire with oneself.

Where, therefore, 4 named individuals as in the present case were charged with having committed an offence under s. 120-B, I.P.C. and three out of those four were acquitted of the charge, the fourth accused could not be held guilty of the offence of criminal conspir-"1cy.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 42 of 1955. On Appeal by Special leave from the Judgment and order dated the 8ih October 1954 of the Bombay High Court in Criminal Appeal No. 315 of 1954 aris-ing out of the Judgment and Order dated the 6th January 1954 of the Court of the 4th Presidency Magistrate, Bombay in Cases Nos. 639-40/P-1955.

H. f. Umrigar, f. B. Dadachanji and Rajinder Narain for the appellant.

Porus A. Mehta and P. G. Gokhale for the respon-.dent.

1955. October 14. The Judgment of the Court was .delivered by '

BHAGWATI J.-The accused No. 1, the Appellant before us, and accused Nos. 2, 3 and 4 were charged that they, at Bombay, between about June 1950 and November 1950, were parties to criminal conspiracy hy agreeing to do certain illegal acts, to wit: Firstly,

Topanda, v. 'Th~ State of Bombay Bba,gr~;afi].

that they used as genuine forged bills of entry which included bills of entry Exhibit Z; Secondly, that they cheated the Deputv Chief Controller of Imports, Bombay, by fraudulently and dishonestly inducing him to deliver to the firm of J. Sobhraj & Co., :m im-port licence bearing No. 248189/48 to import cycles from United Kingdom of the value of Rs. 1,98960; Thirdly, that they cheated the Deputy Chief Control-ler of Imports, Bombay, by falsely and dishonestly inducing him to deliver to the firm of J. Soblm; & Co.; an import licence bearing No. 203056/48 to im-po:t watches from ' Switzerland of the value of Rs. 3,45,325; and Fourthly, that they cheated the Deputy Chief Controller of Imports, Bombay, by fraudulently and dishonestly inducing him to deliYer to the firm of J. Sobhraj & Co., an import licence bearing No. 250288/48 to import artificial silk piece goods from Switzerland of the value of Rs. 12,11,829; and the abovesaid illegal acts were done in purouance of the said agreement and that they thereby committed an offence punishable under ~ection 120-B of the Inrfon Penal Code. There were also charges against all the accused under section 471 read with section · 465 and section 34 and also under section 420 read witli section 34 of the Indian Penal Code in respect of each of the three illegal acts aforesaid. The learned Presidency Magistrate. 2ird Court. Esplamde, Bombav, tried all the accused for the said offences and acquitted all of them. The State of Bombay. thereupon took an appeal to the High Court of Judicature at Bombav, and the High Court reversed the acquittal of accused No. 1 and held him guilty of all the offences with which he had been charged in-cluding the offence under section 120-B of the Indian Penal Code. The acquittal of accused 2, 3 and 4 was confirmed .•

The High Court, even though it acquitted accused 2, 3 and 4 of the charge under section 120-B of the Indian Penal Code, was of the opinion that the deed of assignment put forward by the accused No. 1 in his defence was false and fabricated document and the said document along with its accompaniments was

forged or was got forged by or with th~ knowledge or connivance of the accused No. 1 and his co-conspimtors and it was impossible to believe that this conspiracy carried out with such meticulous care could be the work of only accused No. 1. There was no evidence on the record to warrant any inference that the accused No. 1 was acting in the matter in collabora-tion with any other co-conspirators and the only evidence was in regard to the various acts alleged to have been done by accused 2, 3 and 4 in the matter of the conspiracy and the furtherance of the objects thereof. ·while considering the question of sentence to be passed on the accused No. 1 who, in spite of the circumstances aforesaid. was convicted of the offence under section 120-B of the Indian Penal Code, the High Court obseryed that "the conspirators, whoever they were, had shown considerable ingenuity and daring in carrying out the object of the conspiracy .and that it felt no hesitation in coming to the conclmion that it was not straitened circumstances or financial diffi-culties which were the basis of the conspiracy but it was the greed for money on such large scale as could never be regarded as an extenuating circum-stance". It, therefore, directed that the accused No. 1 should undergo rigorous imprisonment for 18 months for the offence under section 120-B of the Indian Penal Code. The application for \eaye to appeal to this Court filed by accused No. 1 was rejected by the High Court. The accmed No. 1 thereupon applied for and obt~ined special 11.'.ave to appeal against the decision of the High Court. The special leaYe was, however, limited to the question of law, whether the com·1ct10n under section 120-B is maintainable in view of the fact that the other alleged conspirators had been acquitted.

The charge as framed under section 120-B of the Indian Penal Code was levelled against 4 named indi.· viduals, the accused Nos. 1, 2, 3 and 4. It was not charge a~ainst them and other persons unknown wit] 1 the resu[1]t that if accused 2, 3 and 4 were acquitted of that charge, there remained only accused No. l and

Topandas v. The State of Bombay Bhagwati J•

ropanJ.,, v. The Stall of Bombay Bhagwati J.

the question, therefore, arises for our consideration whether, under the circumstances, the accused No. 1 could be convicted of the offence under section 120-B of the Indian Penal Code. Criminal Conspiracy has been defined in section 120-A of the Indian Penal Code :-"When two or more persons agree to do or cause to be done (i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designated criminal con--spiracy". By the terms of the definition itself there ought to be two or more persons who must be parties to such an agreement and it is trite to say that one person alone can never be held guilty of criminal con-spiracy for the simple reason that one cannot con-spire with oneself. If, therefore, 4 named individuals were charged with having committed the offence under section 120-B of the Indian Penal Code, and if three out nf these 4 were acquitted of the charge, the re-maining accused, who was the accused No. 1 in the case before us, could never be held guilty of the offence of criminal conspiracy.If authoritv for the above proposition were needed, it is to be found in Archbold's Criminal Pleading, fa·idence and Practice, 33rd edition, page 201, para-graph 361 :-"Where several prisoners are included in the same irnlictment, the jury may find one guilty and ocquit the others, and. vice versa. But if several are indicted for riot, and the jury acquit all but two, they must acquit those two also, unless it is charged in the indict-ment, and proved, that they committed the riot to-gether with some other person not tried upon that indictment. 2 Hawk. c. 47. s. 8. And, if upon an in-dictment for conspiracy, the jury acquit all the prisoners but one, they must acquit that one also, unless it is charrred in the indictment, and proved, that he conspired with some other person not tried upon that indictment. 2 Hawk. c. 47. s. 8; 3. Chit. Cr. L., (2nd ed.) 1141; R. v. Thompson, 16 Q.B.D. 832; R. v. Manning, 12 Q.B.D. 241; R. v. Plummer r1902] 2 K.B. 339". .

Tlie Ki11v: v. Plummer ([19021 2 K.B. 339) which is

cited in support of this proposition was case in which, on trial of indictment charging three persons jointly with conspiring ·together, one person had pleaded guilty and judgment passed against him, and the other two were acquitted. It was held that 1 he judgment passed against one who had pleaded guilty was baci and could not stand. Lord ustice Wright observed at page 343 :-"Then~ is much authority to the effect that, if il1e appellant had pleaded not guilty to the charge of conspiracy. and the trial of all three defendants together had proceeded on that charge, and had re-sulted in the conviction of the appellant and the acquittal of the only alleged co-conspirators, no judg-ment could have been passed on the appellant, because the verdict must have been regarded as repugnant in finding that there was criminal agreement between the appellant and the others and none between them and him: see Harrison v. Errington (Popham, 202), where upon an indictment of three for riot two were found not guilty and one guilty, and upon error brought it was he[1]d "void verdict'', and said to be "like. to the case in 11 Hen. 4 c. 2, conspiracy against two, and only one of them is found guilty, it is void, for one alone cannot conspire"."

Lord Justice Bruce at page 347 quoted with appro-val the statement in the Chitty's Criminal Law, 2nd ed., V oL III, page 1141 :-

"And it is holden that if all the defendants men-tioned in the indictment, except one, are acquitted, and it is not stated as conspiracy with certain per-sons unknown, the conviction of the single defendant will be invalid, and no judgment can be passed upon l:iim". The following observation~ made by Lord jGstice Jruce ate apposite in the context before m :-"Thr noint of the passage turns upon the circum-stance that the defendants are included in the same indi-:tment, and I think it logically follows from the naiurc of the offence of conspiracy that, where two or mnre rersons are charged in the same indictment with cornpiracy with one · another, and the indictment

1955 Topa11dt1.< v. T/:e State of Bomba_v • Bhagwati],

Topo."ldas v. 1~he State of Bombay Bhrzgwati ].

contains no charge of their conspiring with other per-sons not named in the indictment, then, if all but one of the persons named in the indictment are acquitted, no valid judgment can be passed upon the one re-maining person, whether he has been convicted by the verdict of jury or upon his own confession, because, as the record of conviction can only be made up in the terms of the indictment, it would be inconsistent and contradictory and so bad on its face. The gist of the crime of conspiracy is that two or more persons did combine, confederate, and agree together to carry out the object of the conspiracy".This position has also been accepted in India. In Gulab Singh v. The Emperor (A.LR. 1916 All. 141) Justice Knox followed the case of The King v. Plum-mer, supra, and held that "it is necessary in prose-cution for conspiracy to prove that there were two or more persons agreeing for the purpose of conspiracy" and that "there could not be conspiracy of one".

To similar effect was the judgment in King-Emperor v. Osman Sardar (A.LR. 1924 Cal. 809) where Chief Ju<tice Sanderson observed that "the gist of an offence under section 120-B was an alleged agreement between the two accused and when the jury found that one of them was not party to the agreement and acquitted him of that charge, it followed as matter of course that the other accused could not be convicted of that charge. The assent of both of them ~'as necessary to constitute tl1c agreement which was the basis of the charge". Ratanlal in his Law of Crimes, 18th ed., page 270, has summarised the position as it emerges from the above two cases in the manner following :--"Where, therefore, three persons were charged with having entered into conspiracy, and two of them were acquitted, the third person could not be convicted of conspiracy whether the conviction be upon the verdict of jury or upon his own confes-. ,, s1on .

The position in law is, therefore, clear that on the charge as it was framed against the accused Nos. l, ·2, 3 and 4 in this case, the accused No. 1 could not

be convicted of the offence under section 120-B of the Indian Penal Code when his alleged co-conspirators accused 2, 3 and 4 were acquitted of that offence.

In our opinion, therefore, the conviction of the acoised No. 1 of the charge under section 120-B of the Indian Penal Code was clearly illegal. The appeal of the accused No. 1 will, therefore, be allowed to the extent that his conviction under section 120-B of the Indian Penal Code ::md the sentence of rigorous im-pri,;onmeut of l 8 months awanletl to him as the result thereof would be quashed. 'Ve are not concerned here with th~ conviction of the accused No. 1 of the offences under section 471 read with section 465 and also his conv;ction for each of the three offences under section 420 of the Indian Penal Code and the concurrent sen<ences of rigorous imprisonment for one year in respect of each of them passed by the lower Courts upon him in regard to the same. These convictions and sentences will of course stand.

PURSHOTTAM GOVINDJI HALAI

Sf-LS.EE R M. DESAI. ADDITIONAL COLLECTOR OF BOMBAY & OTHERS.

S. R. DAs, AcTING C.J.. Vrvr,1"' BosE, JAGANNADHA-DAS. J,1n1t brA:vr and CHANDRM'EKHARA ArYAR JJ.]

Constitution of India, Arts. 13(1 ), 14, 21-l ndian Income T 11x Act 1922 ,(Act XI of 192:!), s. 46(2)-Whether offends Arts. 13(1), 14 & 21 of the Constitutio11-Bombay Land Revenue Act 1876 (Boml.1y Act !! of 1876)-IV!ietlier offends Art. 14 of the Co11stitutio11.

The assessee carrying on business in the City of Bombav was as~csscd to income-tax for the years 1943-44 to 1947-48 and 1951-52 by the Income-tax Officer C-1 \Vard Bombay. As the assessee did not pay the income-tax due the Income-tax Officer issued in April 1951 to the Additional Collector of Bombay recovery certificate under s. 46(2) nf the Indian Income tax Act, 1922. In February 1954 the Additional Collector issued notice of demand an.cl as no payment was made he attached the good will and tenancy rights of the asses-see's premises by warrant of attachment dated 24th March 1954.

Topandas V• The Stal' of Bombay

Bha;wali ].

October i-f.