ULAHANNAN VARKEY Vs. MATHAI POULOSE

JUDGEMENT

(1.) SECOND accused in P. E. No. 4 of 1125 on the file of the Moovattupuzha Stationary First Class Magistrate's Court is the Revision. Petitioner. The preliminary enquiry is based on a private complaint. The complainant's case is that he and the first accused were running a partnership business, that the partnership was terminated on 15-5-1124, that the complainant took the textile articles of the business while the first accused retained the lemon grass oil on the agreement that he would sell it with the knowledge of the complainant and give him one half share of the profits, that contrary to the agreement the first accused sold a portion of the lemon grass oil with the connivance and help of the second accused towards the end of Thulam 1125 and misappropriated the sale proceeds, that when the complainant questioned the first accused about the matter the latter agreed to pay the complainant's share of the profits on 15-4-1125 and directed the complainant to go to the second accused's house on that date to receive the money and that when the complainant went to the house of the second accused on 15-4-1125 both the accused intimidated him and forced him to execute a promissory note in favour of the first accused for Rs. 450/ -. The alleged criminal intimidation relating to the execution of the promissory note took place within the jurisdiction of the Always First Class Magistrate's Court while the criminal misappropriation and breach of trust relating to the sale of the lemon grass oil took place within the jurisdiction of the Moovattupuzha Stationary First Class Magistrate's Court. A complaint was filed in respect of both these offences against both the accused before the Moovattupuzha Stationary First Class Magistrate's Court. On 2-7-1952 the second accused filed a petition praying that the complaint should be dismissed for the following reasons:

(2.) SO far as the question of misjoinder is concerned, the Court below is of opinion that the offences under Sections 403 and 406 and that under Section 387 are so connected together as to form the same. transaction, and that, therefore, Section 235 (1), Criminal P. C. applies to the case. Section 235 (1) reads thus: (His Lordship after quoting the provision stated.) Section 239 (a) provides that persons accused of the same offence committed in the course of the same transaction may be tried together. I do not think that this view of the learned Magistrate is correct. The selling of the lemon grass oil and misappropriating the sale proceeds constitute a distinct offence while the criminal intimidation relating to the execution of the promissory note constitutes another distinct offence. The first offence is said to have been committed towards the close of Thulam 1125 while the second offence is alleged to have been committed about two weeks afterwards. It is true that offences which are so intimately connected together as to form the same transaction may be committed at different places and at different times. But in this case it cannot be said that; the two offences are so connected together as to form the same transaction. There is no necessary connection between the criminal breach of trust relating to the sale of lemon grass oil and the criminal intimidation relating to the execution of the promissory note. It may be that it was because the complainant demanded his share of the profits from the sale of lemon grass oil that the first accused thought of taking a promissory note from the complainant by means of criminal intimidation. But that will not make the two acts parts of the same transaction. As observed in -'emperor v. Sherufalli' 27 Bom. 135 (A), the real and substantial test for determining whether several offences are connected together as to form one transaction "depends upon whether they are so related to one another in point of purpose, or as cause and effect, or as principal and subsidiary acts as to constitute one continuous action". I do not think that the alleged offences of criminal breach of trust and criminal intimidation were committed for the same purpose or that the first offence is the cause of the second or that one is the principal act and the other an act subsidiary to it or that both constitute one continuous action. I am clearly of opinion that the case does not come under Section 235 (1), Criminal P. C. If that section does not apply Section 239 (a) also relating to joint trial of persons accused of the same offence committed in the course of the same transaction will not apply. But Sections 233 to 239 relating to joinder of parties and joint trial of offences apply only to trial and not to preliminary enquiries. Vide -"in the matter of Govind 20 Mad. 592 (B)"; and -"emperor v. Hussinalli Vilayatalli" AIR 1942 Bom. 212 (C ). Therefore, the provision in Section 233 that for every distinct offence of which any person is accused there shall be a separate charge and that every such charge shall be tried separately except in the cases mentioned in Sections 234, 235, 238 and 239 does not apply to this case.

(3.) IT is however necessary to consider the question whether the learned Magistrate has got jurisdiction to try the offence under Section 387, Penal Code if the offence under that section and the offences under Sections 403 and 406 were not committed in the course of the same transaction. Under Section 177, Criminal P. C. , every offence shall ordinarily be enquired into and tried by the court within the local limits of whose jurisdiction it was committed. Therefore, the offence under Section 387 can ordinarily be enquired into only by the First Class Magistrate of Alwaye within whose jurisdiction that offence was committed. It is true that an order of committal will not be set aside merely on the ground that the preliminary enquiry was not conducted by a Magistrate within whose local jurisdiction the offence was committed, as provided in Section 531, Criminal P. C. But that is no reason why the court should not take note of the irregularity when it is brought to its notice. Section 201 of the Code of Criminal Procedure provides thus: (His Lordship after quoting the section stated ). In this case the offences under Sections 403 and 406 mentioned in the complaint can be enquired into by the Stationary First Class Magistrate of Moovattupuzha while the offence under Section 387 has to be enquired into by the First Class Magistrate of Alwaye. In the circumstances the proper procedure for the court below to adopt is to direct the complainant to file a separate complaint before the First Class Magistrate of Alwaye in respect of the offence under Section 387 and to confine his enquiry to the offences under Sections 403 and 406.