ISMAIL RASUL SHAIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The applicant who was accused No.1 at the trial was convicted under sections 279 304 337 and 338 Indian Penal Code. The conductor was accused No. 2 at the trial. The prosecution case was that a bus over-loaded with 92 passengers was being driven by accused No. 1 who was the driver. He was driving the bus rashly and negligently and thereby caused the death of 69 persons Both accused Nos. 1 and 2 were tried together.

(2.) In revision it is contended that a joint trial is contrary to the provisions of section 239 Cri. Pro. Code which will hereinafter be referred to as the Code. Under section 239 of the Code two different accused persons can be charged and tried together in the circumstances mentioned in that section which so far as relevant reads as follows:-- The following persons may be charged and tried together namely:- (a) persons accused of the same offence committed in the course of the same transaction; (b) persons accused of an offence and persons accused of abetment or of an attempt to commit such offence; (c) persons accused of more than one offence of the same kind within the meaning of section 234 committed by them jointly within the period of twelve months; (d) persons accused of different offences committed in the course of the same transaction. Accused Nos. 1 and 2 were charged with the same offence for having contravened the provisions of sections 121 123 and 124 of the Motor Vehicles Act. That is justified by clause (a) of section 239 of the Code. But in regard to the offence of rash and negligent driving there is only a charge against accused No. 1 and there is no charge of rashness and negligence against accused No. 2.

(3.) The question is whether the trial of two accused persons one of whom was charged with the offence of rash and negligent driving and the other is charged with the offence of over-loading is justified by sec. 239 of the Code. The trial would be legal if the person's accused of different offences committed them in the course of the same transaction. The expression same transaction is used in section 239 and also in section 235 of the Code which refers to the trial of one accused for more than one offence. The meaning of the words same transaction has been referred to in many cases and the Courts have indicated various tests to decide whether different acts are parts of the same transaction or not namely proximity of time unity of place unity or community of purpose or design and continuity of action. But some of the tests are not helpful or conclusive. To take an instance. If a person while driving a car rashly and negligently causes deaths of three persons that would be one transaction although three different offences are committed. There would be no community of purpose because it is not the purpose of the accused to drive the car rashly or negligently or to cause the death of three persons. The test of community of purpose or design even when applied to two different persons is not a proper test to be employed. The test of proximity of time is also not quite correct because two offences committed at the same time do not necessarily form the same transaction and two offences which are not committed at the same time may form one transaction. Therefore the test of proximity of time is not a conclusive test. The same remark applies to the test of unity of place because two offences committed at the same place may not form part of the same transaction while two offences committed at different places may form the same transaction. Therefore the test of place is not conclusive.