Nathu Thakur Marwari and Others vs Emperor

Das, J.—Two points have been urged before me, first, that the judgment of the Appellate Court is not in accordance with law, and seconaly, that the joint trial of the petitioners was illegal.

On the first point I am unable to agree with the learned Vakil that the judgment is not in accordance with law. So far as the second point is concerned, I am of opinion that the offences of which the petitioners were charged were committed in the same transaction and that consequently the joint trial was not illegal.

Nathu Thakur has been convicted u/s 3 of the Gambling Act (II of 1867 B. C.) and the other accused have been convicted u/s 4 of that Act, and the argument is that the offences committed by them cannot be said to have been committed in the same transaction. Therefore the problem for my consideratian is, what is the meaning of the words "same transaction" in Section 239 of the Criminal Procedure Code. In the case of Gujja Lal v. Fatteh Lal 6 C. 171 (F.B.) : 6 C.L.T. 439 : 3 S.L.R. 132 : 3 Ind. Dec.112, Garth, C.J. 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." It seems to me that there is a dealing "transacted" between Nathu Ram, who has been found to have opened, kept or used his house as a common gaming house for profit, and the other petitioners, who have used that house for the purpose of gambling and who have paid Nathu Ram his charges for the same. I am of opinion, therefore, that the joint trial of the petitioners was not illegal and that the application fails and must be refused.