JANESHAR DAS Vs. EMPEROR

JUDGEMENT

(1.) I passed a preliminary order in this matter on 4 December 1928. The opinions expressed therein were merely tentative and the whole matter shall be examined over again in the present order. Janeshar Das and Khushi Ram, two servants of the treasurer of the Muzaffarnagar treasury, were charged with three offences and each offence was framed in the alternative either of criminal breach of trust or abetment thereof. There was found deficiency on a certain date in stamp labels kept in the double lock of the treasury and in cash kept in the single- lock. Inquiry was made and the prosecuting agency appears to have been doubtful whether Janeshar Das committed the breach of trust and Khushi Ram abetted him, or whether Khushi Ram committed the breach of trust and Janeshar Das abetted him. Three items of defalcation were chosen, two relating to stamps and one relating to cash, and as regards each item the charge was framed in the alternative. Both Janeshar Das and Khushi Ram were "tried jointly. In this Court the argument of Janeshar Das has been that he was born a fool and the blackguard of the piece was Khushi Ram. On his behalf no allegation was made as to the illegality of the trial. This point, however, was stressed with great force by Mr. Banerji on behalf of Khushi Ram as the learned Counsel appears to have felt that the cause of Khushi Ram was damaged by joint prosecution with Janeshar Das.

(2.) The provisions of Section 239, Criminal P.C., lay down how persons will be charged and tried together. Mr. Banerji argued that Khushi Ram was really charged for more than three offences, in fact six, as in each case he was charged in the alternative for breach of trust and for abetment thereof. This Court has held that the provisions of Section 239 of the Code are to be considered exclusively without the help of the provisions of Secs.234 to 238. In 1921 in the case of Ram Prasad V/s. Emperor A.I.R. 1921 All. 246 Kanhaiya Lal and Wallach, JJ., had before them the trial of more than one person for three offences of dacoity. They observed: The four accused could also have been triad jointly in one trial for any one of the three dacoities in which they are alleged to have taken part, but all could not be tried together at one trial for the three dacoities, as these offences were not committed in the same transaction, Section 234 is one of a number of sections which are grouped together under the heading of "joinder of charges." This may, and in fact does, refer to charges both against single and several accused. But the sections under the general heading relating to these respective cases are kept separate. Section 233 lays down a general rule that for every distinct offence there is to be a separate charge and that every such charge is to be tried separately, except in the cases mentioned in Secs.231, 235, 236 and 239. Secs.234 to 238 by their terms refer to the case of a single accused. Section 239 deals with the case where more persons than one are accused. The legislature intended to and did by these sections differentiate between the cases of a single and several accused. It cannot be said that all the sections prior to Section 239 apply to both these cases although in terms they refer to one only, viz., that of a single accused. The existence of a Section 239 specifically dealing with the case of several accused, and the arrangement of the sections to which We have referred, constitutes such a repugnance in the context as prevents us from reading "a person" in Section 234 as including several persons.

(3.) These observations were made prior to 1923. The provisions of Section 239 at that time were as follows: When more persons than one are accused of the same offence or of different offences committed in the same transaction, or when one parson is accused of committing any offence and another of abetment of, or attempt to commit such offence, they may be charged and tried together or separately, as the Court thinks fit; and the provisions contained in the former part of this Chapter shall apply to all such charges.