ROSHAN SINGH Vs. EMPEROR

JUDGEMENT

(1.) THIS application in revision is based on a misjoinder of charges which constitutes an illegality invalidating the entire trial under the Privy Council ruling in Subrahmania Ayyar V/s. King-Emperor 25 M. 61 : 11 M.L.J. 233 : Bom. L.R. 540 : 28 I.A. 257 : 5 C.W.N. 86 : 2 Weir 271 : 8 Sar. P.C.J. 10 (P.C.). The six accused were tried at one trial for offences under Secs.147 and 325 of the Indian Penal Code alleged to have been committed on the 24 of January, and at the same time for offences under Secs.147, 323 and 342 of the Indian Penal Code alleged to have committed on 25 January. THIS joint trial cannot be justified under Section 234 or 239 of the Criminal Procedure Code. The offences are not offences of the same kind, since the offence under Section 342 at any rate is an offence quite different from that under Section 325. Neither were the offences committed in the same transaction. It has been held in several cases that Sections 234 and 239 of the Criminal Procedure Code cannot be combined e.g., Nitya Gopal V/s. Jiban Krishna Bagchi 20 Ind. Cas. 412 : 40 C. 31 : 14 Cr.L.J. 428 and Emperor V/s. Mata Prasad 30 A. 351 : A.W.N. (1908) 152 : 5 A.L. 400 : 8 Cr.L.J. 4, I must, therefore, and hereby do set aside the convictions and direct a re-trial of the accused. The offences alleged to have been committed on January 24 must be tried separately from those alleged to have been committed on January 25th. I regret this result inasmuch as no objection was taken at the time of the trial or even in the appeal to the Court below. I have been asked-to let the accused on bail. I make no order on ibis application but leave it to the Court before whom the accused may be brought to pass orders on any application that may be made to it.