Ajablal Rai and Others vs Emperor

Varma, J.—This petition has come before us on a reference by Macpherson, J., as he considered that a decision by a Division Bench was necessary on the question of law arising in the case. Of the seven petitioners, petitioner 1, Ajablal Rai has been convicted under S.224, Penal Code, on a charge of escaping from lawful custody. Petitioners 2 to 7 were convicted u/s 225, Penal Code, on a charge of having rescued petitioner Ajablal Rai from lawful custody as well as u/s 147 of rioting with the common object of rescuing him from lawful custody. All the petitioners were sentenced to six months'' rigorous imprisonment under Sections 224 and 225, but no separate sentence was passed u/s 147. The question that comes before us for decision is whether the joint trial of the petitioners, viz., of Ajablal Rai u/s 224 and the other petitioners under Sections 225 and 147 is legal.

The case for the prosecution was that Ajablal Rai, a proclaimed offender was arrested by dafadar Ajablal Dusadh on 19th January 1935. He was arrested outside the shop of one Madho Sahu at mauza Parmanandpur and soon after the arrest, the other six petitioners slapped and assaulted the dafadar and his party, which consisted of chaukidars including Baudhu chaukidar, Bhikho chaukidar and Basant Chaukidar, and thereby effected his escape from lawful custody. The escape was effected after the petitioner Ajablal Rai had been taken a few laggas off by the dafadar and chaukidars in spite of his resistance to proceed to the thana. The charge framed against petitioner Ajablal Rai was as follows:

That you, on or about 19th January 1935 at Sensarpur, P.S. Khagaria, escaped from the custody of Ajablal Dafadar in which you were lawfully detained for the offence of murder u/s 302, I.P.C., and thereby committed an offence punishable u/s 224, Penal Code.

The charges against the other petitioners were as follows:

First.--That you, on or about 19th January 1935 at Sansarpur, P.S. Khagaria, were members of an unlawful assembly, and did, in prosecution of the common object of which, viz., to forcibly rescue prisoner Ajablal Rai from the lawful custody of the chaukidars and dafadar commit rioting, an offence punishable u/s 147, Penal Code, and Secondly--That you on or about the same day of January 1935 at the same place intentionally offered resistance to the lawful apprehension of Ajablal Rai for the offence of murder u/s 302, I.P.C., and rescued the said Ajablal Rai from the custody of Ajablal Dafadar and thereby committed an offence punishable u/s 225, Penal Code.

At this stage I think it proper to refer to Sections 224 and 225, Penal Code. Section 224 runs as follows:

Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself for any offence with which he is charged or of which he has been convicted, or escapes or attempts to escape from any custody in which he is lawfully detained for any such offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Looking at the various acts which constitute an offence u/s 224, it appears that the question of rescue does not arise in the case of

resistance for illegal obstruction to the lawful apprehension of himself for any offence with which he is charged or of which he has been convicted, or attempts to escape from any custody in which he is lawfully detained for any such offence,

because if he succeeds in resisting he is not arrested; if he successfully offers illegal obstruction he has not yet come into lawful custody; if he attempts to escape from any custody in which he is lawfully detained the custody is still there. It is only in the case of his escaping from lawful custody that the question of rescue would arise. I now take up Section 225 which runs as follows:

Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of any other person for an offence, or rescues or attempts to rescue, any other person from any custody in which that person is lawfully detained for an offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both, etc.

Looking at the elements of Section 225 it is clear that if the resistance has been offered successfully no question of any lawful custody arises. The same remark applies to illegal obstruction to lawful apprehension. In an attempt to rescue, the offence u/s 225 may be committed but the party in custody may continue in custody. It is only in the case of rescue, if successful, that the person in custody is released from custody. There may be several variations in the offences committed under Sections 224 and 225 and the question whether the particular series of acts form part of the same transaction will depend on the facts and the circumstances in which the offences were committed. For instance, if a police officer wants to arrest A on the strength of a warrant, and A and his friends B, C and D obstruct the police officer in arresting A, there is no doubt that the acts of all the four were in the course of the same transaction, although by the application of Section 38, I.P.C., A will be guilty u/s 224 and B, C and D u/s 225. Now the question that arises in this case is whether the rescue of a man in custody and the escape of the man from lawful custody form part of the same transaction to enable a joint trial of the offenders. The expression "same transaction" has not been defined in the Criminal Procedure Code and it is perhaps not desirable to attempt to frame any precise definition and not safe to lay down any single test of what "one transaction" means. The illustration to Sections 235 and 239 of the Code in the form in which those sections stood before the amendments of 1923 declare the intention of the legislature to include such cases as are described: but the illustrations were clearly not meant to be exhaustive. Illus. (b), Section 239 of the Code of 1898 runs thus:

A and B are accused of a robbery in the course of which A commits a murder with which B has nothing to do. A and B may be tried together on a charge charging both of them with the robbery, and A alone with the murder.

Proximity in time and place was an element present in all the illustrations to Section 239 as it then stood. Section 235 of the Code was examined in Queen-Empress v. Fakirappa (1891) 15 Bom 491 where it was pointed out that proximity of time and place was not essential. The illustrations, as was then pointed out by Bird wood, J., cover cases where (1) the different offences form part of a continuous series of acts, as well as cases where (2) several distinct offences are committed at the same time, and cases where (3) though an interval of time has elapsed the same specific criminal intent is common to all the alleged acts. These observations were applied in Emperor v. Datto Hanmant (1906) 30 Bom 49 to a case where the acts charged were separated by distinct intervals of time. It was held that

a series of acts separated by intervals of time are not excluded, provided that those jointly tried have been directed throughout by one and the same objective.

In that case, there was found to have been continuity of purpose from start to finish and it was said that this rather than proximity of time was the real test. In some later decisions, the observations made in that case have been read as implying that identity of purpose was the sole test and that in the absence of complete identity of purpose among the parties to an incident it will not be deemed to be one transaction. The Judges in Emperor v. Datto Hanmant (1906) 30 Bom 49 did not, I think, intend to lay down such a general proposition, which would have been difficult to reconcile with illus. (b) to Section 239 as it then stood.

It seems to me that any of the matters set forth in Queen-Empress v. Fakirappa (1891) 15 Bom 491 may in the circumstances of a particular case--the events under consideration--form one transaction; and all these matters are properly to be considered in deciding whether it is so or not. It is after all a question of fact in each particular case: Tamezkhan v. Rajjabali Mir 1927 Cal 330. The case reported in Tepanidhi Gobinda Chandra v. Emperor 1920 Pat 230 is an instance in which the different offences were held to be not parts of the same transaction. A man committed an offence u/s 354 against a woman; the woman''s husband wanted to assault the man, whereupon his servants assaulted the husband; in that case it was held that it is not so much the proximity of time as the community of purpose which makes a certain set of act parts of the same transaction. The facts themselves will show that the facts of that case are quite different from this case. The former offence was begun and ended before the latter offence and independently of it. In Raghu Dusadh v. Emperor 1930 Pat 159 one of four persons who was committing theft was arrested by the owners of the field who, after they had walked a short distance, were assaulted by a mob of 20 persons and the arrested man was rescued. It was held that the trial of the persons who were committing theft with those people who committed riot with the object of securing the release of the arrested thief was bad. Here again the former offence was done before the latter offence began, and there was no evidence that the rescuers and the thief were acting in collusion, or that the two sets of facts were otherwise so connected as to make them parts of the same transaction.

In Sitaram Jha v. Emperor Cr. Revn. No. 223 of 1933 a man was arrested for stealing a handful of radishes from the field of the complainant. He effected his escape by assaulting the complainant and two other persons rescued him from the custody of the complainant by assaulting the complainant. All these three were tried together. On appeal the learned Sessions Judge set aside the convictions under Sections 224 and 225 but maintained the conviction u/s 323. In revision it was held, relying on the case reported in Tepanidhi Gobinda Chandra v. Emperor 1920 Pat 230, that the various acts were not parts of the same transaction and therefore the joint trial was illegal. The learned Assistant Government Advocate has referred to various cases in which persons charged u/s 224 were tried jointly with persons charged u/s 225, but the point of misjoinder was never raised in those cases. In Mohammad Kazi v. Emperor 1917 Cal 426 one of the petitioners was arrested for an offence under the Opium Act but he escaped with the aid of the others. He was convicted u/s 224, I.P.C., and the others were convicted u/s 225 of the same Code in the same trial. The point of misjoinder was not raised in that case.

In Kartik Chandra Maity v. Emperor 1932 Pat 171, Kartik Chandra Maity was convicted under Sections 224, 342 and 147, I.P.C. and the others Were convicted under Sections 224, 225 and 353 and also under Sections 147 and 342, I.P.C. In that case many other points were raised but the question of misjoinder was never raised. In Kalu v. Emperor 1933 Lah 159 25 men were sent up under Sections 225, 233 and 392/149 and one man Kundan under Sections 224 and 392, I.P.C. Two of them were acquitted by the Magistrate. The remaining 24 were convicted, Kundan under Sections 224 and 392, I.P.C., and the 23 others were convicted under Sections 225 and 333/149. All of them were acquitted in appeal. On appeal by the Crown against the acquittals Kundan was convicted u/s 224, and of the other group 13 were convicted under Sections 225 and 332. No point about misjoinder of charges or trial was raised. The learned Assistant Government Advocate referred to these cases in view of the remarks of their Lordships of the Judicial Committee of the Privy Council in Brij Narain v. Mangal Prasad 1924 PC 50. In that case their Lordships of the Judicial Committee observed that:

When a long series of cases extending over a long period of time when parties were represented by eminent counsel are decided in a way where if a plea which was evident had been taken and upheld, the decision would have been the other way, there arises an irresistible conclusion that the plea was not taken because it was felt to be bad.

He has given us certain instances in which Courts have held that although the different persons were guilty of different offences still if the offences are complementary to one another, they could be tried jointly and for this he has referred to the case reported in Ganeshi Lal v. Emperor 1923 All 88 in which a keeper of a gambling house and a person who had gone to gamble in that house were tried together and their trial was held to be legal. In Nathu Thakur v. Emperor 1919 Pat 139, which is a single Bench decision of this High Court, Das, J., held that a gambler could be tried jointly with the keeper of the gambling house, because their acts came within the interpretation of the term "same transaction." Reference was made in this case to the interpretation put upon the term by Garth, C.J., in Gujja Lal v. Fatteh Lal (1881) 6 Cal 171 where the learned Chief Justices said:

A transaction, in the ordinary sense of the word, is some business or dealing which is carried on or transacted between two or more persons.

The decisions reported in Emperor v. Darab 1928 All 20 and Khilinda Ram v. Emperor 1922 Lah 458 lay down the same principle. In the case reported in In re Shriniwas Krishna Shriralkar (1905) 7 Bom LR 637 a person giving a bribe and a person accepting the bribe were tried together and when the point of misjoinder was raised their Lordships held referring to Sections 161 and 162:

Looking at these two sections it appears to us that "the same transaction" is involved in the giving to accused 2 herein and the taking and accepting by accused 1 herein. The latter is the principal and the former is the agent. The one obtains and the other receives. This transaction of course may have various branches and various details. Therefore it appears to us that there is nothing in the sections which have been referred to, which renders the joint trial of these persons in any way prohibited by any of the provisions of the Criminal Procedure Code.

It is not necessary to multiply instances. In this case as the charge stands it is clear that whereas the man charged u/s 224 escaped from lawful custody the rescuers helped him to escape from lawful custody. The intention of all was to secure the release of the man in lawful custody. Therefore I am of opinion that the various acts which brought about the escape from lawful custody formed part of the same transaction as contemplated by Section 239(d), Criminal P.C., and therefore the joint trial of the petitioners was legal. I would therefore reject the petition. The sentence is not severe. The convictions and sentences will therefore stand.

Rowland, J.

I agree.