Sk. Nabijan and Others vs Emperor

Bennett, J.—The four petitioners in this application for revision Sk. Nabijan, Sheikh Juman Ali, Sheikh Lijan and Sheikh Niamat alias Sadur Babu--were charged and tried by a Magistrate of the First Class with an offence u/s 323, Penal Code and the petitioner Sheikh Niamat was also charged and tried in the same trial with an offence u/s 324, Penal Code. They were found guilty of an offence charged and all four of them were sentenced to three months'' rigorous imprisonment in respect of the offence u/s 323, Penal Code and Sheikh Niamat was sentenced to three months'' rigorous imprisonment in respect of the offence u/s 324, Penal Code which was directed to run consecutively to the first imprisonment u/s 323. On appeal, the learned Sessions Judge of Purulia upheld the conviction and sentences but directed that the two sentences upon Sheikh Niamat should run concurrently instead of consecutively.

The prosecution case, so far as it can be gathered from the judgments below, was that there was some dispute between the petitioners and the complainant regarding a piece of land, namely, plot No. 843 in village Chapri and that on 14-7-1945, between 9 and 9-30 A.M., whilst the complainant was ploughing his said land, the four petitioners entered the land, abused him and objected to his ploughing the land, that a quarrel ensued and that the petitioner Niamat struck the complainant on his head with a tangi. Two eye-witnesses of this occurrence, to which I shall hereinafter refer to as the first incident, intervened and prevented it from taking a serious turn. The complainant and one of these eye-witnesses then started out to Purulia P.S. with a view to lodging an information against the petitioners in respect of this first incident. On the road to the police station at about 10 A.M., and therefore very shortly after the first incident, the four petitioners overtook the complainant and endeavoured to dissuade him from lodging an information. A second altercation took place, and when the complainant insisted on the proceeding to the police station, the four petitioners again assaulted him. I shall hereinafter refer to this latter assault as the second incident. Both the Courts below have held that the prosecution case as above set put was sufficiently established in evidence at the trial.

The sole grounds taken in support of the application for revision are, firstly, that the charges against the petitioner Sheikh Niamat under Sections 323 and 324, Penal Code, have been illegally joined, and secondly, that the charge against all four petitioners u/s 323, Penal Code, has been illegally tried with the charges u/s 324 against the petitioner Sheikh Niamat.

The application for revision came in the first instance before Reuben J. who after hearing the application referred the same to a Division Bench in the following terms:

The petitioners in this case have been convicted u/s 323, Penal Code, and one of them has been convicted u/s 324, Penal Code. The two charges relate to two incidents which took place one following the other, the first incident at the field of the complainant in Barkanali khet mauza Chapri, P.S. Purulia, and the other at Chhara on the District Board road to Purulia when the complainant after the first incident was on his way to report the matter at Purulia. The point which arises is that of misjoinder of charges, the Patna view regarding which is that misjoinder is an illegality vitiating the whole trial: Nathu v. Emperor AIR 1940 Pat. 499, and Chintaman Rai v. Emperor AIR 1945 Pat. 388. The Patna view appears to be based on Subrahmanya Ayer v. Emperor (02) 25 Mad. 61 which was discussed and distinguished in AIR 1927 44 (Privy Council) which latter case was concerned with a contravention of an express direction of Section 360, Criminal P.C., but their Lordships of the Judicial Committee nevertheless held that the contravention was curable u/s 5.37 of the Code and pointed out that in 25 Mad. 61s the procedure followed was one which the Code positively prohibited "and it was possible that it might have worked actual injustice to the accused." Whether in view of this distinction, the case in Subrahmanya Ayer v. Emperor (02) 25 Mad. 61 can any longer be regarded as an authority that a contravention of the Code of Criminal Procedure which constitutes an illegality is by itself sufficient to vitiate the entire trial has been several times considered and answered in the negative: Ramaraju Tevan v. Emperor AIR 1930 Mad. 857 ; Kapoor Chand and Another Vs. Suraj Prasad ; Emperor Vs. Mathuri and Others, ; Emperor Vs. Bishan Sahai Vidyarthi and Others and Emperor Vs. Ermanali and Others, . The effect of the decision in the case of AIR 1927 44 (Privy Council) , and the exact scope of the decision in Subrahmanya Ayer v. Emperor (02) 25 Mad. 61 has been left open by the Judicial Committee: AIR 1938 130 (Privy Council) where their Lordships say at p. 132:

It has been taken as settled law on all sides throughout these proceedings that the infringement of Section 239(d) would, if made out, constitute an illegality as distinguished from an irregularity, so that the conviction would require to be quashed under the rule stated in Subrahmanya Ayer v. Emperor (02) 25 Mad. 61, as contrasted with the result of an irregularity, as to which AIR 1927 44 (Privy Council) is an authority. Their Lordships will assume that this is so, without thinking it here necessary to discuss the precise scope of what was decided in Subrahmanya Ayer v. Emperor (02) 25 Mad. 61, because in their understanding of Section 239(d) that question does not arise.

As the question is of some importance and the point frequently arises and has given rise to complicated discussions as to what exactly is connotated by the words, ''The same transaction,'' I feel that this matter should be considered by a Division Bench. Let this matter be placed before a Division Bench.

The last paragraph of the reference appears at first sight to limit the reference to a consideration of the exact connotation of the words "the same transaction" in Section 239(d), Criminal P.C., but on reading the reference as a whole, I am inclined to think that this is exactly what the learned Judge desired to avoid. I think that he has taken the view that in this case no prejudice can possibly be said to have been caused to the petitioners by the alleged misjoinder and that, therefore, if the alleged misjoinder can be treated as any error or irregularity within the meaning of Section 537, Criminal P.C., there would be no need to enter upon a complicated discussion as to what is connoted by the words "the same transaction" and that the application for revision should be dismissed.

The learned Judge has laid no light burden upon us, because the application for revision can only be dismissed on the ground suggested by him if we take the view that the previous decisions of the Division Benches of this Court to which he has referred in the light of the other authorities to which he has also referred were incorrectly decided, which would, in any event, compel us further to refer this case to the decision of a Full Bench. Alternatively, we are bound to enter upon the apparently complicated discussion as to the exact connotation of the words "the same transaction."

However complicated the question may be, whether or not there has been, in the particular circumstances of a case, a misjoinder of charges or of accused persons, I think that a Court must first face and consider that question before deciding, if it be open to it to decide, whether or not the misjoinder has in fact occasioned a failure of justice. The reason being that the danger of injustice by reason of misjoinder is so substantial as always to necessitate at least as burden some inquiry into the evidence and circumstances of the case as would be involved by the inquiry into the actual existence of misjoinder and that there is, therefore, no sufficient reason to depart from the logical sequence of issues.

I, therefore, turn in the first instance to the question of misjoinder. Mr. Chatterji, who appeared for the petitioners has argued forcibly that the first and the second incidents in this case do not form part of the same transaction for the purposes of either Section 235(1) or Section 239(d), Criminal P.C., because there was neither community of purpose nor continuity of action between the two incidents and that upon the authorities both these features are essential conditions which must be fulfilled before two acts or events can be said to form part of the same transaction.

The joinder of charges against an accused person and the joint trial of two or more persons are governed by Sections 233 to 236 (inclusive) and 239, Criminal P.C. Section 233 lays down the primary and fundamental rule in respect of both these matters and provides that:

For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in Sections 234, 235, 236 and 239.

So far as it is material for our purpose, Section 234 of the Code provides that:

When a person is accused of more offences than one of the same kind committed within the space of twelve months...he may be charged with, and tried at one trial for any number of them not exceeding three." Section 235(1) provides that:

If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial, for every such offence.

Section 236 is not material for our purposes; and Section 239 so far as it is material for our purpose, provides that:

The following persona may be charged and tried together namely:

(a) persons accused of the same offence committed in the course of the same transaction;

* * * * *

(d) persons accused of different offences committed in the course of the same transaction;"

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and that

the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges.

By virtue of the concluding words of Section 239, Criminal P.C., the joinder of the charges under Sections 323 and 324 against the fourth petitioner, Sheikh Niamat falls to be justified in the circumstances of this case under the provisions of Section 235(1) of the Code. The joint trial of the four petitioners in respect of the offence u/s 323, Penal Code, with petitioner 4 Sheikh Niamat, In respect of the offence u/s 324, Penal Code, falls to be justified however, under the provisions of Section 239(d), Criminal P.C.

Consideration, on the one hand, of the apparently plain and ordinary meaning of Sections 235(1) and 239(d), Criminal P.C., respectively, and, on the other hand, of the decided cases as to the connotation of the term "the same transaction" have led me to the same conclusion and I propose first to state and discuss what appears to me to be the plain and ordinary meaning of the sections, and then to consider that meaning in the light of the authorities.

It is of fundamental importance in this connexion to notice and consider the difference in the wording between Section 235(1) and Section 239(d), Criminal P.C. In the first place, as was pointed out by Lord Wright in AIR 1938 130 (Privy Council) . Section 239(d), Criminal P.C., does not either expressly or impliedly import the limitation imported into Section 235(1), Criminal P.C., by the words "in one series of acts so connected together as to form." Similarly, Section 235(1), Criminal P.C., does not either expressly or impliedly import the limitation imported into Section 239(d), Criminal P.C., by the words "in the course of." This difference does not appear to me to be a mere accident of wording. The Legislature, had it so intended, could have made Section 235(1), Criminal P.C., correspond exactly in scope and meaning in this respect to paras. (a) and (d) of Section 239, Criminal P.C., and Section 235(1), Criminal P.C., would then have read "If, in the course of the same transaction, more offences etc.," but it has not done so, and the effect of this difference is, in my opinion, considerably to augment the kinds of acts which can properly be said to form part of the same transaction u/s 235(1) as compared with Section 239(d).

A transaction, in its etymological and dictionary sense as also in the sense in which it is used in common parlance connotes the carrying through of a particular matter or affair. The words "in the course of" denote prima facie a direction to some end or purpose. I do not think that they can be understood as being merely equivalent to "whilst" or "during"; if that had been intended, I think that the Legislature would have used the phrase "in the same transaction" and not "in the course of the same transaction." The latter phrase as used by the Legislature would, therefore, appear to comprise only one class of acts, namely, all the acts of all the persons concerned in carrying through the particular affair. Each such act must be directed to the carrying through of the affair and, therefore, community and continuity of purpose is an essential feature for the inclusion of such acts in the same transaction, but continuity of action in the sense which would exclude any appreciable distance of time or space is not such a feature. Thus, as Lord Wright stated in AIR 1938 130 (Privy Council) above referred to:

Whatever scope of connotation may be included in the words ''the same transaction'', it is enough for the present case to say that if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators) these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concert and agreement which constitute the conspiracy, serve to unify the acts done in pursuance of it.

These considerations apply to any case such, for instance, as a dacoity, where two or more persons concur in advance to carry through a particular affair, and obviously, and particularly in cases of conspiracy, there may be a great lapse of time and distance and a complete lack of logical sequence or continuity between the various acts.

In Section 235(1), Criminal P.C., the emphasis is on the connexion of the acts in one series and the correct literal paraphrase of the words used by the Legislature appears to me to be--"Where more offences than one are committed as a result of acts which form part of one series of acts committed by the same person in the carrying through of a particular matter or affair, he may be charged with, and tried at one trial for, every such offence"--So paraphrased, the words do not appear to me to import any necessary continuity of purpose, and the apparently deliberate omission from the Sub-section of the phrase--"in the course of" affords a substantial ground for not reading the words of the Sub-section'' as if they imported any continuity of purpose. I think, therefore, that in their plain and ordinary meaning the words used in Section 235(1), Criminal P.C., include all acts committed in one series and so connected that they can reasonably be said to have been committed in the carrying through of the affair in question though not necessarily for the purposes thereof, and, in my opinion, therefore, comprise not merely all the acts of the person concerned committed in one series and in the course of carrying through the affair in question, but also all the acts of the person concerned committed in the said series which are in direct and immediate casual or circumstantial relation thereto. The first class of these acts, namely those committed in one series and in the course of carrying, through the affair, connote a continuity of purpose and a degree of continuity of action. The necessary degree of continuity of action will vary with the nature of the purpose and the particular circumstances of the same case. A mere general purpose will not connect acts substantially divorced in time or place. Thus, if ''A'' poisons a house dog at 3 P.M. with a view to theft and housebreaks with intent to thieve at 11 P.M. the two offences will form part of the same transaction, but an unsuccessful attempt to bribe a servant to leave open the door of a house on a certain night will not form part of the transaction of housebreaking and theft a week later. An act has a direct and causal relationship with the carrying out of an affair when it is the direct consequence of an act performed in the course of such carrying out. Thus, for example, where "A" breaks into ''B''S'' house in order to commit theft and after being surprised and beaten by ''B'', escapes and, whilst running away from the house and in order to revenge himself for the beating, he has received at ''B''S'' hands, sets fire to an outhouse, the offences of house breaking and mischief form part of the same transaction for the purposes of Section 235(1).

It may be helpful to pause here a moment and to note that if ''A'' and ''C'' had been jointly concerned in the offence of house breaking, but ''c'' had run away and escaped at the first alarm, then, in a joint trial of ''A'' and ''C'', a charge of mischief against ''A'' could not be joined u/s 239(d), Criminal P.C., to a joint charge of house breaking against ''A'' and ''C'', because the offence of mischief could not be said to have been committed in the course of the transaction of house breaking and there being no community or continuity of purpose. This distinction between the effect of Sections 235(1) and 239(d), Criminal P.C., is only logical. There is nothing prejudicial, in the circumstances, in the trial of ''A'' alone for the two offences of house breaking and mischief since the evidence relating to both offences would be relevant in a trial for either offence alone, but when it is sought to join in that trial a charge against ''c'' upon house breaking, a possibility of prejudice against ''C'' is introduced by reason of the admission of the evidence upon the charge of mischief which would be inadmissible in a trial against ''C'' alone and which might lead, therefore, to certain confusion and prejudice so far as ''c'' is concerned. It is necessary to note that, in order that an act may be said to form a part of a certain transaction by reason of causal relationship thereto, there must be a direct continuity of action. If there is any appreciable interval of time between the causal act and the act of effect, then the necessary connexion between them is broken and the subsequent act is not in the same transaction as the earlier act.

An act is in direct and immediate circumstantial relationship with the carrying out of an affair if the occasion for its commission is suggested or provided by some other act or acts performed in the course thereof. Thus if ''A'' breaks into B''s house for the purpose of theft and finding ''B''S'' wife in bed commits adultery with her, the two offences of housebreaking and adultery are committed in the same transaction. This example differs from illust. (b) to Section 235, Criminal P.C., only in the original intent with which ''A'' entered the house, but the acts are the same, and it seems to me to make a nonsense of the law to say that, in such circumstances the question whether the two acts are committed in the same transaction depends upon that original intent which in many cases would not be susceptible of proof. Who but ''A'', the intruder himself, could in many cases, say whether his original intention was to commit theft or adultery? And why should the law make such a false and unnecessary distinction; false, because, in their context in Section 235(1), Criminal P.C., as was pointed out in Shapurji Sorabji v. Emperor AIR 1936 Bom. 154 the words "the same transaction" are not to be interpreted in any technical sense but from the standpoint of common sense and the ordinary use of language, and from'' this standpoint I feel sure that the layman would insist that the two offences in question fall within the same transaction irrespective of ''A''S'' original intent; and unnecessary, because prejudice to the accused, which is the basis of Section 233, Criminal P.C., from which Sections 235 and 239 are exceptions, cannot be effected in such a case by ''A''S'' original intent? It is, again, perhaps helpful to note (that if in the case of the example above quoted ''C'' had jointly concerned with ''A'' in breaking into ''B''S'' house, the charge against ''A'' and ''c'' jointly in respect thereof, could not properly have been joined and tried u/s 239(d), Criminal P.C., with a separate charge against ''A'' for adultery because the adultery could not be said to have been committed in the course of the house-breaking transaction. The distinction is again a logical one. If ''A'' and ''c'' jointly break into ''B''S'' house in order that ''A'' may rape ''B''S'' wife, then the evidence both as to the breaking-in and as to the rape, if committed, would have been admissible in a trial of ''C'' alone upon a charge of house-breaking and he therefore suffers no prejudice by having his trial joined with that of ''A'' upon both charges. If the original intent, however was theft then evidence of an adultery or of rape by ''A'' would not have been admissible in a trial of ''c'' alone upon the charge of house-breaking and to that extent he might be prejudiced by a joinder of the two trials. As in the case of acts which are in direct causal relation ship with the carrying through of an affair so in regard to acts which are in direct circumstantial relationship with the carrying through of the affair the feature of direct continuity of action is essential.

I turn now to the authorities on the point. The earliest decision of this Court to which we were referred is the case in Gobinda Chandra v. Emperor AIR 1920 Pat. 230. It was there held that where accused 1 seized a woman with the intention of forcibly having sexual intercourse with her and was attacked by her husband and accused 2 and 3 thereupon appeared and assaulted the husband, then in the absence of proof or allegation that the three accused were acting for a common purpose in execution of a common design, a joint trial, in which accused 1 was charged u/s 354, Penal Code, and accused 2 and 3 u/s 323 was illegal. The short reason which may be given upon the basis of the above considerations for holding that there was misjoinder in that case is that the first condition to a proper joinder u/s 239(d), Criminal P.C., namely that all the accused must be persons concerned in the carrying through of a particular affair, that is to say that there must be community and continuity of purpose, was not fulfilled. Accused 2 and 3 were never concerned in carrying through any affair in conjunction with accused 1. The Court relied upon the principles enunciated in three previous cases which I shall hereafter refer in detail and based its decision upon the lack of continuity of action or purpose) between the acts of the various accused. Lack of community and continuity of purpose there certainly was, but, with respect to the learned Judges, the facts there stated do appear to show a continuity of action.

The first case relied upon in Gobinda Chandra v. Emperor AIR 1920 Pat. 230 was Emperor v. Jethlal (05) 29 Bom. 449. The facts in that case were that a theft was committed of certain property including ornaments. ''S'' was one of the persons who received the stolen property from the thieves. ''S'' disposed of the property to several persons and, being indebted to ''J,'' he gave a portion of the property to ''J'' in satisfaction of his debt, ''K'' was found to have in his possession a portion of the property identified as stolen in the same theft, but there was nothing to show when he received it and from whom. Under these circumstances, the three persons ''S'', ''J'', and ''K'' were tried together at one trial on charges of receiving stolen property knowing it to be stolen. It was held that the offences could not be regarded as having been committed in the same transaction within the meaning of Section 239, Criminal P.C., and the ratio decidendi of the judgment of Batty J. was that there was no community of purpose between the three accused. That decision is obviously in line with the plain meaning of Section 239 which I have suggested.

The second case relied upon in Gobinda Chandra v. Emperor AIR 1920 Pat. 230 was Emperor v. Datto Hanmant (06) 30 Bom. 49 where it was held that a succession of alternative breaches of trust by two trustees, each breach by one trustee being with the connivance of another, form part of the same transaction. In this case the transaction in question was a conspiracy to defraud the beneficiaries, and each breach of trust was clearly an act performed in the carrying out of that transaction. This case also is in conformity with the plain meaning of Section 239, which I have above suggested.

The third case relied on in Gobinda Chandra v. Emperor AIR 1920 Pat. 230 was Choragudi Venkatadri v. Emperor (10) 33 Mad. 502. In that case the six accused were charged as Directors of Circars Provident Fund, Bapatla, with having committed breaches of trust in respect of three sums of money namely, Rs. 469-13-3 between 30-9-1905, and 25-3-1906, Rs. 4,639-8-6 between 25-3-1906, and 25-3-1907 and Rs. 5,226-7-1 between 25-3-1907 and 18-9-1907; the misappropriations thus covering a period of nearly two years. Accused 4 and 6 were also charged for having falsified certain accounts by making false entries therein on 20th and 25th April 1905 and these two and accused 1 as having falsified another document on 24-6-1905. Accused 6 was further charged for having cheated two persons, one on 6-3-1905, and another on 29-3-1905-and accused 4 with having cheated a third person on 17-6-1905. Those among the six accused persons who were not charged with the substantive offences of falsification of accounts and cheating were charged with having abetted the commission of these offences. Even at first sight, the joint trial of all these accused would not seem to have been justified u/s 239, Criminal. P.C., because it is obvious that all the offences of all the accused were not committed "in the course of the same transaction." It was held that though the Company in question was formed with the object of defrauding the public it could not be said that the distinct acts of embezzlement alleged against the various accused and committed in the course of several'' years formed part of the same transaction by reason of such general object. The argument in this case apparently was directed to showing that though the joint trial of the various accused might possibly be justified by reason of the overriding general purpose, yet the joinder of the charges against each of the accused could not be justified u/s 235(1), Criminal P.C., and in the course of his judgment Benson J. said:

Whether any series of acts is so connected or not as to form the same transaction must necessarily depend on the exact facts of each case, but these are so varied in character that it is impossible to provide a completely accurate definition. There is, however, usually no great difficulty in deciding whether any particular case cornea within the rule. In the present case I do not think that it can be said that the alleged misappropriations, extending over the whole period of the Company''s existence, were committed in the course of the same transaction within the meaning of Section 235; for if so the expression would equally cover misappropriations of a similar kind extending, it may be, over 40 or 50 years. This would obviously render nugatory the provisions of the law which are designed to simplify and define within reasonable limits the charges that may be tried at one and the same time and so avoid the embarrassment of the accused and I may add of the jury in attempting to deal with a multitude of charges at one and the same time.

Abdur Rahim J. said:

I think--and this seems to be the effect of the decisions reported in Emperor v. Sheruf Alli (03) 27 Bom. 135, Emperor v. Datto Hanmant (06) 30 Bom. 49, Queen-Empress v. Fakirappa (91) 15 Bom. 491 and Queen-Empress v. Vajiram (92) 16 Bom. 414--that at least in a certain class of cases--the present case is alleged to be within that category--community of purpose or design and continuity of action are essential elements of the connection necessary to link together different acts into one and the same transaction. In such cases the acts alleged to be connected with each other must have been done in pursuance of a particular end in view and as accessory thereto or perhaps as suggested by the circumstances in which the acts in pursuance of the original design were done and in close proximity of time to those acts. But mere community of purpose is not sufficient; there must also be continuity of action. For it may happen that an act is done with a particular objective in view but the final aim is abandoned for some time and pursued afterwards.

It is here that the first suggestion seems to emerge that both community of purpose and continuity of action are necessary for the purposes both of Sections 235 and 239, Criminal P.C., but it is important to note that Abdur Rahim J. specifically limited the proposition to a certain class of case, that he distinctly envisaged the possibility of acts forming the same transaction which were connected together by direct circumstances though not in purpose and that Benson J. limited his agreement to the conclusions arrived at by Abdur Rahim J. So far as this case bears on the meaning of the words in Sections 235(1) and 239(d), Criminal P.C., the actual decision which was that continuity of action is necessary, in order" that acts may be said to form part of the same transaction for the purpose of Section 235(1), Criminal P.C., is in clear conformity to the plain meaning of the section above suggested. The joinder of charges fell to be justified as being within the first class of cases u/s 235(1), above suggested, in which continuity of purpose and a degree of continuity of action is essential. The vague general purpose in this case was insufficient to cover the material acts which were widely divorced in time.

The next decision of this Court, to which we were referred is AIR 1940 pat. 499 In that case several servants of the same master, some of them on one occasion and others upon another, had intimidated witnesses in a prosecution against their master. They were tried together in respect of the acts of intimidation, and it was held that they were not committed in the same transaction within the meaning of Section 239(d), because no connection between them by way of conspiracy was charged, and the alleged community of purpose was not a necessary inference from the charges or the facts proved at the trial. As we have seen, apart from the plain meaning of the words AIR 1938 130 (Privy Council) , is a clear authority in order that persons may be jointly tried u/s 239(d). The actual decision in this case, therefore, when read with AIR 1938 130 (Privy Council) is that community and continuity of purpose are necessary to justify a joint trial u/s 239(d). The decision in this case also, therefore, is in line with the plain meaning of the words in Section 239(d), Criminal P.C., which I have suggested.

The last decision of this Court to which we were referred is Hirday v. Emperor AIR 1946 Pat. 40 . In this case a number of persons were jointly charged with having committed dacoity. Some of them were also charged with illegal rescue or escape, and one of them with dishonestly receiving stolen property. The illegal rescue and escape was effected whilst some of the dacoits were on their way home. The accused who was charged with dishonestly receiving stolen property was also alleged to be one of the dacoits and was arrested on his way home. It was held that the offences were committed in the course of the same transaction on the ground that in order to make the dacoity expedition successful it was essential for the miscreants to get away with the looted property and escape detection. In other words, the conspiracy and pre-arrangement between the dacoits and so their common purpose must be deemed to have included the taking and getting away. This decision is in line with the extract from Lord Wright''s judgment in AIR 1938 130 (Privy Council) above quoted and is on all fours with the plain and ordinary meaning of the words used in Section 239(d), Criminal P.C. which I have suggested, since it is clear that the successful getting away with the loot and without arrest are acts which are done in the course of the carrying through of the affair of dacoity. The essential elements, so far as Section 239(d) is concerned, of community of purpose were clearly present.

This review of the authorities seems, therefore, so far as it goes, to confirm the view I have taken as above set out of the scope of Sections 235(1) and 239(d), Criminal P.C.

To sum up, therefore, both upon the plain and ordinary meaning of the words used respectively in Sections 235(1) and 239(d), Criminal P.C., and upon consideration of the relevant authorities, the words "the same transaction" in Section 236(1), Criminal P.C., comprise all the acts of the person concerned which are done in one series in the course of carrying through the affair in question or which are in direct and immediate causal or circumstantial relation [thereto, and the prima facie test, as the words "in one series of acts so connected as to form" indicate, where the connection between the acts is that of purpose, is a certain degree of continuity of action, the degree varying with the nature of the purpose and the circumstances of the case, and where the connection between the acts is causal or circumstantial, is a direct continuity of action; whereas in Section 239(d), Criminal P.C., the words "the same transaction" comprise all the acts of all the persons concerned done in the course of carrying through the affair in question, and the prima facie test, as the words "in the course of" indicate, is community and continuity of purpose.

Applying these considerations to the facts of this case, the joint trial of the four petitioners on the charge u/s 323, Penal Code, with the trial of petitioner 4 in respect of the offences u/s 324, Penal Code, falls to be justified, if at all, u/s 239(d), Criminal P.C., by the existence of a community and continuity of purpose between the four accused persons, but does not necessitate any continuity of action. The purpose of the original assault, namely, to stop the complainant from ploughing the land in question was not completed by the assault which constituted the first incident and if following that assault the complainant had again started to plough the land and again been assaulted, these two assaults proceeding from the same community of purpose between the four accused would clearly have been performed in the course of the same transaction. Instead of again starting to plough his fields the complainant set out for the police station to lodge a complaint whereupon the four petitioners after an unsuccessful attempt at persuation again assaulted him. If the complaint had been lodged and had been successful, it would not only have resulted in punishment of the four petitioners, but it would also gravely have imperilled the success of the purpose for which the first assault was made. In assaulting him a second time, therefore, it is reasonable to infer that the petitioners were moved not only by the fear of punishment but also by the desire to stop the complainant from taking action which might greatly reinforce his right to plough the land. In these circumstances, there seems to me to have been sufficient community and continuity of purpose to warrant their joint trial u/s 239(d), Criminal P.C.

The joinder of the charges against petitioner 4 under Sections 323 and 324, Penal Code, falls to be justified, if at all, u/s 235(1), Criminal P.C., and in the circumstances of this case, I think that the joinder can be doubly justified thereunder; firstly, because the two acts of assault fall within the first class of cases covered by Section 235(1), Criminal P.C., in that, there being community and continuity of purpose and no substantial interval of time between them, they can properly be said to have been committed in one series of acts in the course of carrying out the affair of preventing the complainant from ploughing his field, and secondly, because the second assault was in direct and immediate causal connection with the firsts since it resulted directly therefrom and there was no such appreciable interval of time between them as to interrupt their direct continuity.

That being so, it is unnecessary for us to go into the other question raised, namely, whether misjoinder of charge or trial can be cured as being an error or irregularity within the meaning of Section 537, Criminal P.C. In the course of the argument, however, we have devoted a considerable study to the three relevant cases in the Privy Council--Subrahmanya Ayer v. Emperor (02) 25 Mad. 61 , AIR 1927 44 (Privy Council) and AIR 1938 130 (Privy Council) , and having regard to the term in which Reuben J., has referred this case to a Division Bench, I think it right, speaking for myself, and with the greatest possible respect, to say at least this, that I am only able to reconcile the judgment of their Lordships in Subrahmanya Ayer v. Emperor (02) 25 Mad. 61 with that in AIR 1938 130 (Privy Council) on the ground that prejudice to the accused was the foundation of the decision in the former case but was expressly negatived in the latter case. That these two judgments are to be so reconciled derives some support from the comment on Subrahmanya Ayer v. Emperor (02) 25 Mad. 61 made by Lord Phillimore in the course of his judgment in AIR 1927 44 (Privy Council) . It is to be noted, moreover, that when read with the arguments of counsel in that case, as it requires to be, Lord Halsbury''s judgment in Subrahmanya Ayer v. Emperor (02) 25 Mad. 61 appears prima facie to decide that Section 234, Criminal P.C., controls the application of Section 285(1) thereof. But there are weighty reasons for supposing that that is not the case and the judgment of their Lordships in AIR 1938 130 (Privy Council) , in the course of which it is pointed out that the limitation imported into Section 235(1), Criminal P.C., by the words "in one series of acts so connected as to form" is neither expressly nor impliedly imported into Section 239, Criminal P.C., appears at first sight to be inconsistent therewith especially when regard is had to the concluding words of Section 239, Criminal P.C. When the judgment in 28 LA. 257 is read as a whole, it may perhaps be proper and possible to hold that the real and sole ratio decidendi thereof was that though Section 235(1), Criminal P.C., contains no limit to the number of charges that may be joined in one trial thereunder, yet, haying regard to the terms of Section 234, Criminal P.C., to the general policy of the law expressed in Section 233, Criminal P.C., and to the obvious possibility of actual injustice, Section 235(1), Criminal P.C., could not, ex debito justitia, be allowed to cover the multitude of acts included in the charge of conspiracy in that case, and that, a fortiori, their joinder thereunder could not be treated as a mere irregularity u/s 537, Criminal P.C. It is to be hoped that a decision of the Full Bench may soon set these matters at rest, but on the facts of the present case, I do not think that we should be justified in referring the case to a Full Bench.

I would, therefore, dismiss the application.

Meredith, J.

I agree that the application should be dismissed. The two incidents were,'' in my opinion, so connected, both by community and continuity of purpose, and community and continuity of action, as to form part of the same transaction both within the meaning of Sections 235 and 239, Criminal P.C. That being so, it is unnecessary for the purpose of this case to decide whether the difference in wording of the two sections is really significant; whether in short continuity of action is enough for Section 235(1) without continuity of purpose, and whether community and continuity of purpose is enough for Section 239(d) without continuity of action. Therefore, I will content myself with saying that, as at present advised, I am inclined to agree with the view of my learned brother as to the exact significance of each form of expression and the distinction between them; but until I have to I do not want to express a final view. If it were necessary, I should have liked to have heard further argument, and made a more complete examination of the numerous authorities of the various High Courts. Without that I do not want to reject finally the possibility that the Legislature, when it spoke of "one series of acts so connected together as to form the same transaction" in Section 235(1) and used the expression "in the course of the same transaction" in Section 239, had merely in view the fact that, while the acts of one individual must be in series, those of several conspirators may well be simultaneous. The exceptions, if any, are so rare as not to have entered into consideration. At the moment I can think of two only, that one Sir Boyle Rochi''s bird, which is said to have possessed the faculty of being in two places at the same time, and the case of those members of the fair sex who can read and knit simultaneously.

As to the other question, namely the effect of misjoinder of charges, or perhaps I should say misjoinder of offences in the same trial, I think that in fairness to myself I should say that after hearing a full discussion in the present case I find no reason to go back on what I said in the three cases upon the point to which I have been a party, Nathu Chaudhury v. Emperor AIR 1940 Pat. 499, Chintaman Rai v. EmperorA.I.R. 1945 Pat. 388 and Hirday v. King-Emperor AIR 1946 Pat. 40. There is no authority to the contrary in this High Court, and as I consider that, having regard to the words used by Lord Halsbury, in Subramania Iyer''s case (02) 25 Mad. 61, only a fresh pronouncement by the Privy Council could justify a different view, I do not think anything could be gained by making a reference to a Full Bench.

It is true that, having carefully read the report of the arguments in Subramania''s case, (02) 25 Mad. 61 and noted that conspiracy was alleged, and that Phillips for the respondent expressly relied upon Section 235(1), I also find it difficult to reconcile Lord Halsbury''s judgment with what was said by Lord Wright in AIR 1938 130 (Privy Council) . It may be that Lord Halsbury was of opinion, though he has not said so, that continuity of action as opposed to the continuity of purpose provided by a conspiracy, is essential to bring a case within the exception to Section 233 provided by Section 235(1) and that there can be no continuity of action as between 41 offences committed at different times extending over a period of two years. Section 235(1) emphasises the connexion of the acts themselves "a series of acts so connected together as to form the same transaction." Where there is a conspiracy which itself forms the transaction, then unconnected acts may all form a part of that transaction. But a man cannot conspire with himself. In Subramania''s case (02) 25 Mad. 61 it was the joinder of his offences that was objected to, and not the joinder of his trial with that of D''Santos, and it was Section 285(1) that was pleaded in extenuation, not Section 239(d). On the other hand in AIR 1938 130 (Privy Council) it does not seem to have been argued that the various offences of theft could not be tried together but only that this should not have been joined in a single charge.

If there is anything in this theory, then my learned brother is quite right in holding that the difference in the wording of the two sections is significant, and it is in this difference of wording that the reconciliation of Subramania''s case (02) 25 Mad. 61 and AIR 1938 130 (Privy Council) may be found.

It also follows, however, that it then becomes unnecessary to construe Lord Halsbury''s judgment as being based really upon prejudice in order to effect the reconciliation.

However we may speculate upon these points, there cannot, in my judgment, be any reason why the plain language of Lord Halsbury with regard to the effect of misjoinder should not be accepted at its face value. Lord Halsbury said:

Their Lordships cannot regard this as cured by Section 537. Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial ''(Italics mine) as a mere irregularity. Such a phrase as irregularity is not appropriate to the illegality of trying an accused person for many different offences at the same time, and those offences being spread over a longer period than by law could have been joined together in one indictment. The illustration in the section itself sufficiently shows what was meant.

The remedying of mere irregularities is familiar in most systems of jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes within the description of error, omission, or irregularity.

Lord Halsbury, in my opinion, is not drawing any distinction between the particular words "irregularity" and "illegality." He is not laying down as a general proposition that no illegality is curable u/s 537. He is drawing a distinction between what can be cured u/s 537 and what cannot be cured u/s 537, irrespective of the labels that may be attached. He is drawing too a distinction between an error as to a mode of trial--the constitution of the trial, and an error in the conduct of the trial, and is saying as plainly as it can be said that a misjoinder of offences in the same trial, that is to say, the trying together of several offences in a manner forbidden by law, goes to the root of the matter. It is an error in the mode of trial, and as such is incurable, because there is a necessary presumption of prejudice.

Lord Halsbury having clearly said that disobedience to the provisions of Section 233 (of course read subject to its exceptions) cannot be cured u/s 537, it is, in my opinion, not open to any Court in this country, unless and until the Privy Council itself gives a decision to the contrary, to hold that such a disobedience is so curable. I respectfully disagree with those decisions in which misjoinder of offences in the same trial has been held so curable. I find two such cases in the Allahabad High Court, namely, Emperor Vs. Mathuri and Others, , and Emperor Vs. Bishan Sahai Vidyarthi and Others .

Upon the general question my own view has been so exactly and so well stated by Page J. (as he then was) in Emperor Vs. Ermanali and Others, that I feel I cannot better his language, and I propose to quote him.

37a. In the course of his judgment that learned Judge says:

am strongly of opinion that when the decision of a criminal Court in substance appears to be correct, an appeal Court should endeavour to uphold the decision even in oases where the rule of procedure by which the trial is to be regulated had been transgressed, except where the breach of the prescribed rules is of so grave a nature that the form of trial was substantially different from that provided by law for the offence charged, or where, although the violation of the rules was not so profound as radically to alter the mode of trial, it is proved that thereby in the event a failure of justice has in fact been occasioned Italics mine)...the appeal Court is satisfied in point of fact that the accused has materially been prejudiced by the breach of procedure, clearly a failure of justice has occurred; while, if by reason of the breach of procedure, there has in effect been substituted another mode of trial for that prescribed by the legislature, as affording the best means of obtaining a fair trial, it is presumed that a fair trial has not been accorded to the accused, and in that case also there has been a failure of justice.... If the appeal Court is not satisfied that the breach of procedure falls within one or other of those categories, in my opinion, it ought not to hold that the proceedings have become vitiated merely because there has been a transgression of the prescribed rules by which such proceedings are to be regulated. It is even to be borne in mind that rules and regulations are intended to be the handmaid and not the mistress of the law, and that, in criminal proceedings, it is of utmost importance that a decision, just and reasonable on the merits, should not be disturbed, because in the course of the proceedings some flaw can be detected that is not fundamental and which is not proved to have worked injustice to the accused, although it may constitute a breach of the rules of Criminal Procedure.

Speaking of Subramania Iyer''s case, (02) 25 Mad. 61 he said:

In that case, the failure to conform to the procedure laid down in the Code of Criminal Procedure clearly went to the root of the trial, and vitiated it....It would equally be incorrect to assert that every violation of the Code of Criminal Procedure is curable as that every failure to conform to the rules of procedure ipso facto vitiates the proceedings.

In my opinion also, Lord Halsbury was drawing that distinction, and stating that the failure to conform to the procedure laid down went to the root of the trial and vitiated it. If I am right in this view to say that the decision was based upon prejudice would be to misinterpret it.