Yusuf Khan vs Emperor

Ray, J.—This rule was issued on the District Magistrate of Cuttack to show cause why the conviction of the petitioners should not be set aside. The petitioner Yusuf. Khan, has been convicted u/s 323, Penal Code, and the petitioner, Budhu Khan, u/s 379, Penal Code, while both have been sentenced to rigorous imprisonment for two months each by the, Sessions Judge of cuttack in appeal on modifying their conviction u/s 394, Penal Code, by the Sub-divisional Magistrate, Kendrapara, for which they had been sentenced each to rigorous imprisonment for six months each and to a fine of Rs. 150 and Rs. 100 respectively.

The learned lower appellate Court in interfering with the finding of the trial Court, held that the assault committed by the petitioner Yusuf was not for the end of commission of theft, and, therefore, their offences did not fall u/s 394, Penal Code. They were, therefore, acquitted by him of this offence. The ultimate finding at which he arrived was:

The two appellants might have remained, waiting at the place for the complainant to pass along the road. They appeared when they saw the complainant approaching towards them. The appellant Yusuf started the quarreland assaulted the complainant. Up to this stage the common object of the appellants might be the same or similar, but when the other appellant Budhu found that Yusuf was able to overpower the complainant, Budhu ran away with the bundle and Yusuf followed him when he found that other travellers had come to or were approaching towards the spot.

On this finding he convicted each of the petitioners for the specific offence committed by him by the specific act that he did.

The trial Court''s finding that the two acted in concert for voluntarily causing hurt for the end of committing robbery was dislodged. In these circumstances, it is argued by Mr. Sahu for the petitioners that as the acts amounting to offences committed by the accused persons were distinct and unconnected, they cannot be tried jointly. The learned Advocate-General in his reply to this argument invited attention to. Section 239(d), Criminal P.C, and contends that the act of assault by Yusuf and the act of theft by Budhu were committed in the course of the same transaction. The point to be determined, therefore, is whether the two acts together constituted one transaction committed, as they are, under circumstances of this case.

The learned Advocate-General says that in order to determine whether the joint trial of the petitioners is bad on account of misjoinder of persons and charges, the Court should not look to what is ultimately found to have been the facts but what were the accusations when the accused persons were put on trial. The authority relied upon is the case in AIR 1938 130 (Privy Council) . Their Lordships expressed themselves in the following terms:

Their Lordships are of opinion that the view adopted in India is correct, as the High Court have held in the present case. The clause deals with three Matters, accusation, charge, trial. It says nothing about verdict. The condition is expressed in the words ''persons accused of different offences, etc.'' It does not say ''rightly accused'' or ''accused and convicted.'' It is on the basis of What appears on the face of the accusation that the Court may proceed to charge and try. The accusation is necessarily anterior to the exercise of the discretion to charge and try. These are stages subsequent to the accusation. This view is strengthened by reference to Section 254 which states the duty of the Magistrate in warrant oases, such as the cases in question here. The duty so stated is that the Magistrate, when evidence has been taken, or at any previous stage of the base, if of opinion that there is ground for presuming that the accused has committed an offence triable under Ch. 21 which he is competent to try and which in his opinion Could be adequately punished by him, should frame in writing a charge against the accused. Similarly, in the case of trials in the High Court or Courts of Session, charges will be framed on the accusation. It is true that the opinion of the Magistrate may be wrong in law as to there being a same transaction, or the evidence which led him to think prima facie that this condition existed, may be insufficient or may eventually be falsified. It would result in any such events that the prosecution is enabled, at the trial to join separate offences contrary to the terms of Sections 234 and 235. And it has been affirmed that improper advantage is taken of Section 239(d) so as to bring into one proceeding a great number of accused and a great multiplicity of offences, with serious hardship and injustice to the accused. If that were indeed the result of the section, as the High Court seem to be apprehensive it might be, it would be much to be regretted and might well be a ground for an amendment of the section by the Legislature if such practice prevailed notwithstanding the warning of the High Court and their determination to see that accused are not being unfairly dealt with and to prevent any procedure by which oases which should be comparatively short and simple become unwieldily complicated and lengthy. But even so that can be no ground why the Court should misconstrue the section. Indeed it is difficult to think that such apprehensions are justified. It must be hoped, and indeed assumed, that Magistrates will exercise their discretion fairly and honestly. Such is the implied condition of the exercise of every discretionary power. If they do not, or if they go wrong in fact or in law, then the accused has prima facie a right of recourse to the Superior Courts by way of appeal or revision.

In this connexion their Lordships quoted with approval the following passage from the judgment of Batty J.: Emperor v. Datto Hanmant (06) 30 Bom. 49. The statement reads:

Section 239 admits of joint trial when more persons than one are accused of different offences committed in the same transaction. It suffices for the purpose of justifying a joint trial that the accusation alleges the offences committed by each accused to have been committed in the same transaction.

They also referred to another passage from the judgment of Baker J. in Gopal Raghunath v. Emperor AIR 1929 Bom. 128. The statement is:

So long as the accusation against all the accused persons is that they carried out a single scheme by successive acts, the necessary ingredients of a charge regarding the one transaction would be fulfilled, and the fact that the conspiracy was not established,'' would not vitiate the trial as regards those acts for which the evidence was sufficient for proof.

The stage, therefore, at which it has to be decided whether the accused persons should be tried jointly or severally is the stage of accusation. The learned Advocate-General has cited the case in Akhil Bandhu Ray v. Emperor AIR 1988 Cal. 258 in which it has been held that the stage of accusation is the stage when the Public Prosecutor opened the case. In this case the question arises whether for accusation one should depend upon the first information report or statement of the case in the charge-sheet submitted by the police or the evidence adduced in Court and recorded before the charge is framed. If the two differ materially so much so that if reliance is placed upon one, the joint trial would be bad, while relying upon the other, it would be good, which of the two is to be preferred for reliance at the relevant stage. In the present case the first information report and the statement of the prosecution case in the charge-sheet are to the effect that petitioner 1 was trying to purchase a piece of land which was ultimately purchased by the complainant.

He, therefore, bore a grudge against him and had threatened him. While he (complainant) way going on a bike from his shop with a bundle containing a cash of Rs. 230 and his pucca account books, the petitioners were found coming from, an opposite direction one following the other and of them Yusuf started a quarrel and assaulted the complainant first with a log of wood and later when he fell down from his bike as a result of the assault, he got upon him and began assaulting him. At this time, finding the complainant completely in the grip of petitioner l, petitioner 2 Budhu, removed the bundle containing money and accounts and fled away. Petitioner 1 finding some persons approaching towards the spot, left the complainant alone and followed Budhu. In the evidence the case was presented in a materially different shape, namely, that the two petitioners wanted to purchase the land and on their failure, both of them bore a grudge to molest the complainant. In. fulfillment of their common object or intention, they lay in ambush behind a bamboo-bush at a time when the complainant was expected to pass by it, and when he went past the bush, they came out, assaulted the complainant and snatched away the bundle. If the latter version be accepted for the purpose of deciding whether the two persons should be tried together, or, in other words, whether the offence, of assault by one or offence of theft by another was committed in the same transaction, there should remain no doubt that the Magistrate was quite right in trying the petitioners jointly. If the former is taken to be the form of accusation, it would be difficult to hold that the offences were committed in the same transaction.

The learned Advocate-General contends that it is the latter which should determine the form of accusation for the purpose of determining whether the joint trial was good or bad. I cannot accede to this contention as a statement of an absolute rule. I should say on the impression that I have formed on reading the judgment of their Lordships of the Judicial Committee, that in such state of circumstances the Magistrate ought to apply his judicial mind to the facts before him both as they are stated in the earlier and later stages of the prosecution. Their Lordships have also expressed in no mistakable terms that the harmful consequences likely to flow from improper advantage being taken of Section 289(d) so as to bring into one proceeding a great number of accused and multiplicity of offences with serious hardship and injustice to the accused can be avoided by the High Courts or any other superior Court exercising the powers of appeal or revision to rectify wherever the Magistrates or trial Courts go wrong in fact or in law. Their Lordships make it clear that the Magistrates will exercise their discretion fairly and honestly, and in case of their failure, their decisions are liable to revision by their superior Courts. The High Court must be vigilant and resolute to see that the accused are not prejudiced or embarrassed by an improper joinder of parties or of persons accused. Their Lordships no doubt have ruled out as untenable the contention that the legality of the'' trial has to be judged by the ultimate verdict on the facts forming the accusation; but their Lordships have never meant it to be laid down that when at the framing of the charges the accusations have been varied in material particulars from stage to stage, it is beyond the power of either the Magistrate having, had to frame the charge or of the Court of revision or appeal to reject that part of the accusation which seems to be an afterthought. In this case I should say that in order to try the accused persons together on a charge u/s 394, Penal Code, the subsequent developments have been introduced into the accusation. I should, therefore, hold that the legality or otherwise of the trial should be judged, by what a Magistrate exercising his discretion fairly and honestly (to use the words of their Lordships of the Judicial Committee) should have done in this particular case.

I should, therefore, judge it on the allegations contained either in the first information report or the brief statement of the case as it appeared after investigation by the police. There is no substantial variation between the two. The learned lower appellate Court also seems to have taken this view in acquitting the petitioners of the charges u/s 894, Penal Code, but the question of legality of trial of the petitioners together on charges of distinct offences committed by each of them separately was not agitated before him, and that the only reason why the point has not been dealt with in his judgment.

On the facts as alleged in the early stage of the prosecution, the trial can be held legal on the only hypothesis that the offence''s by the accused persons were committed in course of the same transaction as, provided in Section 289(d), Criminal P.C. In order to judge whether it was in the course of the same transaction, I should here place before me what elements are there and what there are not. To start with, common purpose or common object shared by both the petitioners in commission of the offences is completely absent in the accusations. There is no allegation that there was any conspiracy between the petitioners to commit, the offences. The only circumstance from which it is sought to be implied that the two petitioners must have proceeded on a common mission consists in that the two came towards the complainant one following the other. The allegation that they came from behind a bamboo-bush is a subsequent introduction. Apparently the place where the petitioners were found coming one following the other may be a. place of their usual haunt. They might be coming in that direction either as mere companions without any illicit object shared by both or one might be coming independently of the other, it being purely a matter of accident that one was coming ahead and the other behind. The only elements on which the learned Advocate-General very strongly relies in order to spin out the sameness of the transaction are unity of time and place.

It has been decided time and again that whether the offences are committed in course of the same transaction is to be judged from common sense point of view and no decision can be picked out, as it is not humanly possible in which it has been authoritatively intended to be laid down as to what the elements are that will make out one transaction. Authorities are not wanting in which it has been held that uniformity of time or place are not sufficient to make One transaction of the acts committed then and there. What I understand the section to mean is this that there mast be accomplishment of certain objector performance of certain act in view. In order that the different acts will make tip one transaction, it must be inherent in them that from the very beginning of the earliest act or the first act, the other acts should either be in contemplation, or should from the very nature of the transaction in view form the component parts of one whole. Judged from this point of view, I hold that the assault by one and the theft by the other might have happened purely accidentally at the same time and place, but it is difficult to say, or to give a name to, what the transaction was of which these two acts of offences formed component parts of a whole. In my judgment, therefore, the two offences were not committed in course of the same transaction.

Several authorities have been cited by the learned Counsel on each side to prove or disprove that the acts were committed in the course of the same transaction. None of them will help the solution of the difficulty. Each of them is an authority on the facts of that particular case. As they have been cited and discussed at great length at the Bar, I should briefly notice them one after the other. The learned Advocate-General has relied on the following cases: Kashiram Jhunjhunwalla Vs. (Firm) Hurdut Rai Gopal Rai, , Sapurji Sorabji v. Emperor AIR 1936 Bom. 154, Emperor v. Mahadeo Tatya AIR 1942 Bom. 121 and Bhairosing v. Emperor A.I.R 1935 Nag. 141. In the first named case it was laid down:

The word transaction means a group of facts so connected together as to involve certain ideas, namely, unity, continuity and connection. In order to determine whether a group of facts constitutes one transaction it is necessary to ascertain whether they are so connected together as to constitute a whole which can be properly described as a transaction.

This lends great support to the view that I have taken.

In Sapurji Sorabji v. Emperor AIR 1936 Bom. 154 it has been said that:

The word ''transaction'' is rather a vague term. It is not denned in the Criminal Procedure Code and no doubt it is advisedly left undefined. It is not intended to be interpreted in any artificial or technical sense. Common sense and ordinary use of language must decide whether on the facts of a particular case, one is concerned with one transaction or several transactions. Various tests have been laid down to decide whether different acts are part of the same transaction. They are:--(1) proximity of time; (2) unity of place; (3) unity or community of purpose or design; and (4) continuity of action. But the main test must be continuity of action.

This decision is far less in support of the learned Advocate-General''s contention than that of what I have said before. Continuity of action, according to this decision is the main test. Continuity of action is not intended in the sense that one act must immediately follow the other without any other connection. Continuity refers not to the time so much as to the intimate connection between the acts. There is no continuity if after the completion of one act, there is nothing more to be done in order to make the thing done form one whole. If one act is complete by itself and has no connection with the other act which is done either simultaneously or immediately following the earlier one, it cannot be said that there is continuity of action.

Emperor v. Mahadeo Tatya AIR 1942 Bom. 121 has been relied upon in support of a contention that the test consists in whether the evidence to prove the different offences would be the same. On reading the case with care, I have not been able to accept this contention in the nude form in which it has been presented. In that case there was enough material on record to support that one was assisting the other in commission of the main offence of rape and the commission of theft was in that sense considered to be continuous one. The theft there can be conceived to have been committed in course of the same design. That this was not intended to be an absolute rule will be clear from the fact that the evidence of theft could not be the same as that of rape except when they are taken to be a continuous action. This authority, therefore, does not go far to help.

Bhairosing v. Emperor AIR 1935 Nag. 141 in deciding whether the offences were committed in the course of the same transaction has kept in view the different acts being the component parts of one whole. In fact the learned Advocate-General cited this before me when I expressed this idea in course of arguments by way of supporting, my view. I, in fact, thank him for his frankness.

Ganesh Prosad v. Emperor AIR 1931 Pat. 52 indicates that there must be continuity of action and purpose.

Mr. Sahu has cited the case in Abdur Rahim v. Emperor AIR 1931 Pat. 102 by way of replying to the learned Advocate-General''s contention that unity of time and place are the best tests, as this case most emphatically lays down that the mere fact that different offences were committed at the same time and place are not enough to make them parts of the same transaction or to have been committed in the course of the same transaction. In this view I do not think that the authorities cited will convince me to change my view that the two offences committed by the two petitioners were not committed in the course of the same transaction. In my judgment the trial is bad on account of the misjoinder of persons accused.

The only question that I have to determine is whether the petitioners'' should be subjected to a retrial. Stripped off all embellishments the offences committed are very simple and minor. Besides, the prosecution is guilty of improving upon the case as originally stated. The learned lower appellate Court has committed an error of record in saying that it was admitted by the defence that the prosecution witnesses were present at the occurrence. What was admitted was that the real occurrence of assault was on the field where the witnesses were present. The learned lower appellate Court does not feel confident about the prosecution case that the complainant had Rs. 280 in his possession. I do not think it is likely that he (complainant) should carry his pucca accounts from his shop to his house. I do not feel confident that on the evidence as it is, a conviction is more likely than not.

Under the circumstances, I would give the; petitioners the benefit of doubt and acquit them forthwith without subjecting them to a retrial. They will be discharged from their bail bonds forthwith.