EMPEROR Vs. KRISHNAJI ANANT DANGE

JUDGEMENT

(1.) These are two applications in revision made by the accused applying to us to set aside their convictions before the Sub Divisional Magistrate, First Class, Ratnagiri, which were confirmed by the Sessions Judge. The point of law taken is this. The accused were charged that on or about May, 28, 1931, they committed a theft of utensils in the house of the complainant and on June 7, 1931, at night they broke into the house of the aforesaid complainant and committed theft and that they thus committed offences under Secs.380 and 457 of the Indian Penal Code. The learned Magistrate came to the conclusion that he could try the offences together under Section 234 of the Criminal Procedure Code. The question is whether that conclusion was right.

(2.) So far as it is necessary to state the facts they can be stated very shortly. It is alleged, as the charge shows, that on May 27, a theft was committed from the cattle shed of the complainant's house. On June 7, a theft was committed at night from the complainant's house. The complaint was made in respect of the second offence in the first instance, and in inquiring into the second offence the Police got notice of the first offence and the Police sent up two separate charge-sheets in respect of the two offences. But as 1 have said the learned Magistrate came to the conclusion that he could frame a single charge in respect of the two offences.

(3.) Now, Section 233 of the Criminal Procedure Code provides that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately, except in the cases mentioned in the succeeding sections referred to. The learned Government Pleader says that there are not here two distinct offences. He relies on the adjective "distinct", but I think that contention is not well-founded, As charged there was a distinct offence on May 27, that offence coming under Section 380 of the Indian Penal Code. There was another distinct offence on June 7, that offence being of a dual character and being punishable both under Secs.380 and 457 of the Indian Penal Code. It may be that the dual offence on June 7, could not be called two distinct offences, but it seems to me that the offence on May 27 and the dual offence on June 7 were clearly two distinct offences, and there cannot be a single charge or a single trial unless the case can be brought within one or other of the exceptions to Section 233. Section 234 provides that when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences he may be charged with and tried at one trial for any number of them not exceeding three, and then there is a definition of "offences of the same kind" they are only of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code or of any special or local law. Clearly offences charged under Section 380 and Section 457 are not offences of the same kind, and, therefore, I think the learned Magistrate was wrong in thinking that he could frame a single charge under Section 234. It has been suggested that the cases might be tried jointly under Section 235 or 239(d), as being offences committed in the course of the same transaction; the allegation is that both these offences were committed in order to drive the complainant out of the house which the accused desired him to quit. But the mere fact that there may have been a common purpose of that nature cannot make two perfectly distinct offences part of the same transaction. A mere common purpose does not constitute a transaction, and, in my opinion, there was no sufficient connection between these two offences to justify their being tried together under Section 235 or 289(d). I think the learned Magistrate might either have framed a single charge of offences under Section 380 leaving out any reference to an offence under Section 457, or he might have framed separate charges and tried the two charges separately. As he adopted neither of these courses, the trial was illegal and having regard to the views expressed by the Privy Council in the well-known case of Subrahmania Ayyar V/s. King-Emperor, s.c. 3 Bom. L.R. 540, p.c, and to the decision of this Court in Emperor V/s. Manant . I think that we cannot hold that where an accused has been charged with and tried for two offences which cannot be tried together that is an irregularity which can be cured under Section 537 of the Criminal Procedure Code. We have not been into the merits of this case except so far as it was necessary to consider the point of law. However, from the judgment of the lower Courts there does not seem to be any particular merit in the case of the accused, The convictions will have to be set aside on a pure technicality, but I see no reason why we should not direct the two accused to be tried again as was done by this Court in Emperor V/s. Manant. We, therefore, set aside the conviction and sentence and direct that the accused be tried according to law. In giving that direction we do not mean to fetter the discretion which is normally vested in the Crown of considering whether the prosecution should proceed or not. If the authorities acting on behalf of the prosecution come to the conclusion in all the circumstances of the case that it would be better not to proceed with a new trial we have no intention of fettering their discretion. Broomfield, J.