EMPEROR Vs. SHERUFALLI ALLIBHOY

JUDGEMENT

(1.) The petitioner, Sherufalli Allibhoy, was tried before the Chief Presidency Magistrate, Bombay, on three charges: firstly, under Section 485 of the Indian Penal Code, having in his possession on the 9 October, 1902, certain stencil plates for the purpose of counterfeiting Messrs. Hubbock & Co. Limited's trade-mark on two kegs of paint; secondly, under Section 486 of the Indian Penal Code, haying on or about the 7 October, 1902, at Bombay, sold two kegs to which a counterfeit trade-mark was affixed without taking reasonable precautions, &o.; thirdly, under Section 486 of the Indian Penal Code, having in his possession for sale on or about the 9 October, 1902, certain kegs of paint purporting to be Hubbook's paint, having a counterfeit trade-mark. The Magistrate convicted the petitioner on each of the charges and sentenced him to eighteen months, rigorous imprisonment on the first and to one year's rigorous imprisonment on each of the other two charges. He also directed the sentences to run concurrently. The petitioner now appeals against the convictions and sentences.

(2.) The first point raised before us in support of the appeal is that the trial was illegal and must be quashed, because the Magistrate charged the petitioner at one trial with offences which were neither of the same kind, under Section 234, nor connected together so as to form the same transaction, under Sub-section 1, Section 235 of the Criminal P. C.. Mr. Strangman, who has appeared for the petitioner and argued the appeal, conceded that if the offences of which his client has been convicted could be regarded as arising out of the same transaction, the point raised by him should fail. His argument is that they do not arise out of the same transaction, because the first charge related to having had possession on the 9 of October, 1902, of instruments for counterfeiting, whereas the second charge related to a sale on the 7 October, 1902, of certain counterfeit articles--that, in other words, as the two offences related to two different occasions, they could not be regarded as "one series of acts so connected together as to form the same transaction." Briefly put, the argument makes time the" test, and the sole test, for determining whether two or more offences arise out of one and the same transaction. But, in my opinion, there is no principle on which we can hold that, merely because an offence is committed at one time and another offence is committed at another, they should ha regarded as not falling within the category of offences contemplated by Sub-section 1 of Section 235 of the Criminal P. C., whatever in other respects be their interrelation or interdependence. Some of the illustrations to the sub-section in question serve to throw light on its real meaning. Illustration (c) says: A entices B, the wife of C, away from C, with intent to commit adultery with B, and than commits adultery with her. A may be separately charged with and convicted of offences under Secs.498 and 497 of the Indian Penal Code.

(3.) Here the enticing away and the adultery take place on different occasions, but the two acts are connected together, because there is not only continuity of time but also continuity of purpose in them, and, therefore, they are connected together so as to form the same transaction. Illustration (f) says: A, with intent to cause injury to B, falsely accuses him of having committed an offence, knowing that there is no just or lawful ground for such charge. On the trial A gives false evidence against B, intending thereby to cause B to be convicted of capital offence. A may be separately charged with and convicted of offences under Secs.211 and 194 of the Indian Penal Code.