ANTHONI AND OTHERS Vs. STATE

JUDGEMENT

(1.) The petitioners in this case, accused 1, 4 and 10, were convicted for offences under ss. 147, 224, 332 and 323 I. P. C. read with Sec. 149, I. P. C. A. 1 was also tried for an offence under S. 4-A of the Madras Prohibition Act.

(2.) The case for the prosecution is P.Ws. 1 and 2 who are police constables went on beat duty on 31 - 7 - 1952 at about 8 a.m. for the purpose of detecting prohibition offences. At about 5 p.m. they found A-1 and A-9 drunk and behaving in a disordely manner in the public road. A-1 and A-9 were arrested by the two constables and brought to the house of P. W. 3. There, a mahazar was prepared for their drunken condition and, when the constables wanted to take A-1 and A-9 to the doctor at Perambalur, the other accused, A-2, A-3, A-4, A-5, A. 10, A-11, and A-12 came to that place and wanted the constables to enlarge A-1 and A-9 on bail. As the constables had no power to release the accused (A-1 and A-9) on bail, they said that they could not do so. The other accused persisted in their demand for the release of the two accused and as the two accused would not be released by the constables, the other accused are said to have joined together and became members of an unlawful assembly and started attacking the two constables when they were taking A-1 and A-9 for the purpose of medical examination to another place. As a result of the attack on the constables, P.W. 1 received about nine injuries and the other constable also received some injuries. By pure accident, the Tahsildar of Perambalur and the Circle Inspector of Police and some others were coming towards Peranbalur in a pleasure car which was stopped by P. W. 2. They found P. W. 1 with bleeding injuries and he was then taken in their car. In the meantime, A-1 and A-9 escaped on account of the assault by the other accused. On these facts, all the accused were tried for offences under ss. 147, 224, 323 332, and 149 I. P. C. and also under S. 4-A of the Madras Prohibition Act so far as A-1 and A-9 were concerned.

(3.) It is contended that there is a mis-joinder of charges on account of the charge under s 4-A of the Madras Prohibition Act being tried along with other offences. The constables went to arrest A-1 and A-9. Because they found the two persons already in a drunken condition, the offence under Sec. 4 A of the Madras Prohibition Act was already committed. It was at the time of the arrest and when these accused, i.e., A-1 and A-9, were being taken in custody to another place, the other accused joined together and committed the other offences, namely, under ss. 147, 323, 332 and 224, I.P.C. Those latter offences cannot be said to have been committed in the course of the same transaction, as the offence under S. 4-A of the Madras Prohibition Act for which A-1 and A-9 alone were liable, was committed long prior both in point of time as well as in point of place to the other offences. S. 239, clause (f), Cr. P. C. which is the provision to apply to such cases cannot be said to be applicable to the facts of this case. The trial is therefore vitiated by misjoinder of charges. Under the decisions of this court, prejudice has to be so presumed when there is a misjoinder of charges or of persons. In these circumstances, I should hold that the convictions are vitiated by the misjoinder of charges.