KAMESHWAR Vs. STATE

JUDGEMENT

(1.) This is an application in revision by Kameshwar and Murli, who were the two accused in Sessions Trial No. 109 of 1956 before a learned Assistant Sessions Judge of Kanpur. They along with one Ram Ratan are alleged to have entered into a criminal conspiracy to cheat and to have succeeded in doing so by selling forged railway receipts to a number of shop-keepers of Kanpur in the month of August 1955. It was alleged that five such sales were effected. Charges for offences under Sections 420, 467 and 468 I P C. were framed against them in respect of each of the five sales, and there was a common charge of criminal conspiracy under S 120B in respect of all the said offences. Ram Ratan was absconding so that these charges were framed only against Kameshwar and Murli, and as the Magistrate who enquired into these offences was of the view that he could not adequately punish them he made an order committing the accused for trial by the court of session. The trial came up before an Assistant Sessions Judge of Kanpur, and on an application made in that behalf by the prosecution, the learned Assistant Sessions Judge by his order dated 7-1-1957 split up the case into six trials, one In respect of the charge under Section 120B, I. P. C., and five others in respect ol the charges under Sections 420, 467 and 468, I. p. C., relating to each of the five transactions of sale of allegedly forged railway receipts. Kameshwar alone went up in revision against that order to the learned Sessions Judge of Kanpur who rejected the revision on 14-2-1957. Thereafter the present revision was filed by both the accused, Kameshwar and Murli. The learned Assistant Sessions Judge appears to have passed the order in question by a misinterpretation of the word "transaction" in Section 239 (d), Criminal Procedure Code, since he has referred to-the five sales as five transactions. In point of fact, according to the prosecution case the applicants had committed different offences in relation to the sales in question. The point for determination therefore was whether those different offences had been committed "in the course of the same transaction" within the intendment of Section 239 (d). To that aspect of the matter the learned Assistant Sessions Judge seems to have given no thought. The omission appears to have been caused by the said misinterpretation of different offences as different transactions.

(2.) The learned Sessions Judge seems to disagree with the view of the learned Assistant Sessions Judge, and he did so in view of the fact), that there was also a charge of criminal conspiracy against the two accused persons. The learned Sessions Judge was however not sure whether, on account of the charge of criminal conspiracy, there could have been a joinder of the charges and a single trial since he remarked that he was not quite sure if the view taken by the trial court was correct and, further, that in the case of a conspiracy "probably" all the charges could be tried and enquired into in one trial. He went on to hold however that the provisions with regard to joinder of charges being only discretionary, the learned Assistant Sessions Judge appeared to have exercised the discretion properly inasmuch as the splitting up of the case into the various trials was likely to facilitate defence.

(3.) Since neither of the two courts below would appear to have examined the legal position of the matter, it becomes necessary to do so now. The number of persons charged being more than one, the relevant provision relating to joinder of charges is the one contained in Section 233 of -the Code. And since those persons were not accused of the same offence, or of more than one offence of the same kind within the meaning of Section 234 of the Code, and since the case did not fall under any of the specific categories mentioned in Clauses (e), (f), (g) of Section 239, it had only to be seen whether the applicants were "persons accused of different offences committed in the course of the same transaction" within the purview of Clause (d) of that section. There could be no doubt with regard to the prosecution allegation as to the applicants having committed different offences. The only question therefore was whether those offences had been committed in the course of the same transaction.