Moongan and Others vs Mir Roshan Ali Sahib

Horwill, J.—All the petitioners entered into a forest which had been leased to the complainant and cut certain trees. They were all tried

together, although separate charges were framed with regard to two sets of the accused who were cutting trees in different parts of the same

forest. They have all been convicted. In this petition it is contended on behalf of the petitioners that there was a misjoinder of persons and that the

conviction is therefore illegal and should be set aside.

Although the matter was taken in appeal, neither of the Courts say that there was any intention or object common to the two sets of persons

cutting trees in different parts of the forest; so that I agree with the learned advocate for the petitioners--as well as with the learned Public

Prosecutor--that there was a misjoinder of parties. Mr. V.T. Rangaswami Aiyangar for the complainant contends that there was no misjoinder and

quotes Sambasiva Mudali In re (1930) 35 L.W. 98 but it is clear from the judgment in that case that Pandalai, J., was satisfied that the two acts

complained of--although on different dates--were parts of the same transaction and that the object on the two occasions was the same.

The only other question that arises in this case is whether the fact that all the accused were tried at one trial is a sufficient ground for setting aside

their conviction and ordering a re-trial. For many years after (1902) ILR 25 61 (Privy Council) it was held that any disobedience or failure to

comply with the mandatory provisions of the Criminal Procedure Code was an illegality that vitiated the conviction. That was a case in which there

was a misjoinder of causes of action, and a Full Bench of this Court held that there was a misjoinder but that it was open to them to strike out the

first count, to reject the evidence with regard to it, and to deal with the evidence on the remaining counts of the indictment. But their Lordships of

the Privy Council held that the disregard of any express provision of law as to the mode of trial was not a mere irregularity such as could be

remedied by Section 537, Criminal Procedure Code and that such a phrase as ''irregularity'' was not appropriate to the illegality of trying an

accused person for more or different offences at the same time, if those offences were spread over a longer period than a year. In 1927 a case,

Abdul Rahman v. The King Emperor (1926) 52 M.L.J. 585 : 1926 L.R. 54 IndAp 96 : ILR 5 Rang. 53 (P.C) was considered by the Judicial

Committee in which the depositions of witnesses had not been read over in the presence of the accused as required by Section 360, Criminal

Procedure Code. It was held that this was a mere irregularity curable u/s 537 of the Code. This decision showed that a mere disregard of the

mandatory provisions of the Code did not necessarily vitiate a conviction : but it left it rather difficult to say whether in a particular case a disregard

of a mandatory provision amounted to an illegality or was a mere irregularity. Burn, J., in Bomman Chetty v. Emperor (1936) M.W.N (Crl.) 1095

which dealt with a misjoinder of charges, referred to the failure to obey a mandatory provision of the Code as an ''irregularity'', but added that it

was not one of the kind indicated by their Lordships of the Privy Council in Abdul Rahman v. The King Emperor (1926) 52 M.L.J. 585 : 1926

L.R. 54 IndAp 96 : ILR 5 Rang. 53 (P.C.). In Subramania Reddi v. Emperor 1936 M.W.N. (Crl.) 839 five persons were tried together; but there

should have been two trials one for the first accused and one for the accused 2-5. The accused 2 to 5 were however acquitted; and it was

therefore argued that there no prejudice had resulted to the first accused. Burn, J., however held that:

The joint trial was illegal and the illegality could not be cured by the acquittal of accused 2 to 5 of the offences under which they were charged.

In Karuppa Goundan v. Emperor (1935) M.W.N. (Crl.) 820 in which there was a misjoinder of causes of action, King, J., held that it was not a

mere irregularity such as was referred to in Abdul Rahman v. The King Emperor (1926) 52 M.L.J. 585 : L.R. 54 IndAp 96 : ILR 5 Rang. 53

(P.C.) and that the trial and conviction were therefore illegal. None of these cases decided by single Judges however refer to Ramaraja Tevan In

Re: K. Ramaraja Tevan and Others, , in which the effect of a misjoinder of persons was considered. There, Wallace and Jackson, JJ., say:

Ever since the pronouncement of the Judicial Committee in (1902) ILR 25 61 (Privy Council) it has been the general practice to assume that if a

mandatory provision of the Code has been infringed in framing the charge, the Court must of necessity be held to have failed in administering justice

to the accused. Section 537 affords no real ground for any such assumption, and the Judicial Committee itself, when it had occasion to refer to

(1902) ILR 25 61 (Privy Council) in Abdul Rahman v. The King Emperor (1926) 52 M.L.J. 585 : 1926 L.R. 54 IndAp 96 : ILR 5 Rang. 53

(P.C.) clearly indicated that the impugned procedure must be one that is not only prohibited by the Code, but also works actual injustice to the

accused. In the latter case, the Code was clearly infringed but the curative provision of Section 537 was considered a sufficient remedy.

So the position is not altogether clear even to day, although 53 Mad. 937 is not binding on me, because the above-quoted remark was obiter, it

being found that in fact there was no misjoinder. But the purpose of the Legislature in laying down various restrictions with regard to charges

against a number of persons or against the same person of different charges was to avoid embarrassing the accused by a multiplicity of charges or

by bringing together evidence with regard to a number of accused; and so in cases where mandatory provisions as to the joining of charges are

disregarded, it is reason-able to presume that the accused has been prejudiced because his trial has been complicated and his defence therefore

rendered more difficult. Where there is a misjoinder of accused, there is always a possibility that the Court will be unconsciously prejudiced by

evidence that would be irrelevant if the accused were tried separately. It is not necessary to disagree with the above quoted opinion from 53 Mad.

937 and to say that a misjoinder always vitiates a trial; but I think that a Court '' should ordinarily presume prejudice until it is quite certain that

there could have been none.

In the present case, apart from the presumption of prejudice, the trial Magistrate--and even the appellate Magistrate--seemed to be of opinion

that it was not proper to try the two sets of accused separately and that was why the trial Magistrate framed separate charges. He however

erroneously thought that in doing so and in allowing each batch of accused to recall and cross-examine the prosecution witnesses separately, he

was giving them separate trials. Mr. V. T. Rangaswami Aiyangar does not deny that there was in fact only one trial and not two. It is conceded by

Mr. Jayarama Aiyar that the two sets of accused were animated each with a common intention if the prosecution story is true; and so he demands

only two trials and not a trial for each accused separately.

The petition is therefore allowed, the convictions and sentences set aside, and the case remanded for fresh and separate trials of the two sets of

accused by the District Magistrate himself or by some other Magistrate subordinate to him other than the Magistrate who tried the case.