EDWARD TOP Vs. STATE

JUDGEMENT

(1.) These two appeals arise from the judgment of the learned Sessions Judge of Quilon in Sessions Case No. 14 of 1952 on the file of his court. Criminal Appeal 91 is by the 1st accused, in the case and Criminal Appeal 92 by the 2nd accused. They have both been convicted for commission of offences punishable under S.304 A, 279, 336 and 337 of the Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for six months and pay a fine of Rs. 150 and in default of the payment of fine to undergo simple imprisonment for a further period of two months.

(2.) The two accused were driving two cars coming from almost opposite directions and the charge against them related not only to the collision of the cars and the consequences that followed viz., the death of one David Daniel and causing hurt to PW 1 in the case but also to the rash or negligent driving of their cars along the public road as to endanger human life or to be likely to cause hurt or injury to other persons. These latter acts fell under S.279 and 336 of the Penal Code. The commission of the offences under these two sections was anterior to the collision. The charges framed against the appellants make that very clear. Whatever might be said of the collision and its consequences, proximate or remote, we cannot bring ourselves to hold that the driving of his car by Accused 1 on the one hand, in a rash or negligent manner so as to attract the penal provisions in S.279 and 336 and similar conduct with his car by Accused 2 on the other, constituted a "same transaction" within the meaning of S.239 (a) or 239 (d) of the Code of Criminal Procedure. Those are distinct acts unconnected with each other committed by different persons at different places and there is no warrant for the delinquents being jointly tried for those acts. In other words there was misjoinder of charges and persons in holding a joint trial of Accused 1 and 2 for commission of the offences under S.279 and 336. Following the decisions in Raghava Kurup v. Sirkar 1949 TCLR 23 and Dandapani Ayyar v. Sirkar 1949 TCLR 113 we have to set aside the convictions and sentences passed in the trial held in contravention of the mandatory provisions of the Code. The joint trial of two or more persons renders the trial invalid except in the cases falling under S.239. S.537 does not apply to such a case.

(3.) The learned Public Prosecutor invited our attention to certain early Indian decisions which hold that misjoinder of charges and persons would only amount to an irregularity curable under S.537, Criminal Procedure Code, unless the accused persons have been prejudiced by the joint trial. We regret we cannot accede to that argument. We prefer to follow our own decisions cited above and the long line of cases referred to in those decisions.