MOONGAN Vs. MIR ROSHAN ALI SAHIB

JUDGEMENT

(1.) All the petitioners entered into a forest which had been leased to the complainant and cut certain trees. They were all tried together, although separate charges were framed with regard to two sets of the accused who were cutting trees in different parts of the same forest. They have all been convicted. In this petition it is contended on behalf of the petitioners that there was a misjoinder of persons and that the conviction is therefore illegal and should be set aside.

(2.) Although the matter was taken in appeal, neither of the Courts say that there was any intention or object common to the two sets of persons cutting trees in different parts of the forest; so that I agree with the learned advocate for the petitioners--as well as with the learned Public Prosecutor--that there was a misjoinder of parties. Mr. V.T. Rangaswami Aiyangar for the complainant contends that there was no misjoinder and quotes Sambasiva Mudali In re (1930) 35 L.W. 98, but it is clear from the judgment in that case that Pandalai, J., was satisfied that the two acts complained of--although on different dates--were parts of the same transaction and that the object on the two occasions was the same.

(3.) The only other question that arises in this case is whether the fact that all the accused were tried at one trial is a sufficient ground for setting aside their conviction and ordering a re-trial. For many years after Subrahmania Aiyar V/s. King Emperor (1901) 11 M.L.J. 233 : L.R. 28 I.A. 257 : I.L.R. 25 Mad. 61 (P.C), it was held that any disobedience or failure to comply with the mandatory provisions of the Criminal Procedure Code was an illegality that vitiated the conviction. That was a case in which there was a misjoinder of causes of action, and a Full Bench of this Court held that there was a misjoinder but that it was open to them to strike out the first count, to reject the evidence with regard to it, and to deal with the evidence on the remaining counts of the indictment. But their Lordships of the Privy Council held that the disregard of any express provision of law as to the mode of trial was not a mere irregularity such as could be remedied by Section 537, Criminal Procedure Code and that such a phrase as irregularity was not appropriate to the illegality of trying an accused person for more or different offences at the same time, if those offences were spread over a longer period than a year. In 1927 a case, Abdul Rahman V/s. The King Emperor (1926) 52 M.L.J. 585 : L.R. 54 I.A. 96 : I.L.R. 5 Rang. 53 (P.C), was considered by the Judicial Committee in which the depositions of witnesses had not been read over in the presence of the accused as required by Section 360, Criminal Procedure Code. It was held that this was a mere irregularity curable under Section 537 of the Code. This decision showed that a mere disregard of the mandatory provisions of the Code did not necessarily vitiate a conviction : but it left it rather difficult to say whether in a particular case a disregard of a mandatory provision amounted to an illegality or was a mere irregularity. Burn, J., in Bomman Chetty V/s. Emperor (1936) M.W.N (Crl.) 1095, which dealt with a misjoinder of charges, referred to the failure to obey a mandatory provision of the Code as an irregularity , but added that it was not one of the kind indicated by their Lordships of the Privy Council in Abdul Rahman V/s. The King Emperor (1926) 52 M.L.J. 585 : L.R. 54 I.A. 96 : I.L.R. 5 Rang. 53 (P.C.). In Subramania Reddi V/s. Emperor 1936 M.W.N. (Crl.) 839, five persons were tried together; but there should have been two trials one for the first accused and one for the accused 2-5. The accused 2 to 5 were however acquitted; and it was therefore argued that there no prejudice had resulted to the first accused. Burn, J., however held that: The joint trial was illegal and the illegality could not be cured by the acquittal of accused 2 to 5 of the offences under which they were charged.