RATAN SINGH Vs. EMPEROR

JUDGEMENT

(1.) RATAN Singh, a hillman from the Almora district, is alleged to have murdered his wife, Naruli, in the village in which he lives on the night of the 26 of February 1921. Guman Singh, his father, is alleged to have discovered the fact of the murder directly after it was committed and to have intentionally omitted to give information in respect of it. A First Class Magistrate in the Almora district committed the father and the son jointly to the Sessions Court. The Sessions Court convicted the son of murder and sentenced him to death, subject to confirmation by this Court, and sentenced the father to six months rigorous imprisonment under Section 202 of the Indian Penal Code. The case having come up before this Court in appeal and under reference for confirmation, our attention was drawn to the fact that a joint trial could only have been justified under the provisions of the law if the conditions of Section 239 of the Criminal P. C. were complied with. It cannot possibly be said that an offence under Section 202 of the Indian Penal Code, of intention ally omitting to give information respecting the commission of a murder, was committed in the same transaction as the murder, for palpably the commission of the murder was one transaction and the omission to give information was a separate transaction. The gist of the charge under Section 202 of the Indian Penal Code is the omission to give information regarding a transaction which is already completed. There is no question of abetment or attempt to commit an offence, and in these circumstances the trial was illegal. It is not open to us to condone the irregularity. This was laid down by their Lordships of the Privy Council in Sub-rahmania Ayyar V/s. King-Emperor 25 M. 61 : 11 M.L.J. 23 : 3 Bom L.R. 54 : 28 I.A. 257 : 5 C.W.N. 866 : 2 Weir 271 : 8 Sar. P.C.J. At page 97 they say: Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity". "The remedying of mere irregularities is familiar in most systems of jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted, that this contravention of the Code comes within the description of error, omission or irregularity." These are in effect the words used by their Lordships, We, therefore, set aside the convictions and sentences as having been obtained in an illegal trial. With regard to RATAN Singh, we direct that he be re-tried by a Court of competent jurisdiction on the charge under Section 302 of the Indian Penal Code, Inasmuch as the learned Sessions Judge who tried him has already expressed his opinion as to his guilt, it will not be desirable that he should try the case. We, therefore, direct the Sessions Judge of Bareilly to try RATAN Singh on the charge already framed, that is to say, that on the night of the 28 of February last he murdered his wife, Naruli, with a blunt instrument. With regard to Guman Singh in view of the circumstances that the offence charged against him is not a grave offence, that be was in custody from April to July last while awaiting his trial and has been in prison for nearly a month, we pass no order as to his re trial. His conviction and sentence are set aside, and it is directed that he be forthwith released.