SUBBAYYA PILLAI Vs. SESHA IYER

JUDGEMENT

(1.) The petitioner is the com-plaint. He filed a complaint against five person which was taken on file against accused Nos. 2 to 5 as voluntarily causing grievous hurt, under Section 320, Indian Penal Code, and against 1 accused, who is a Pleader, as abetment of that offence, under Secs.325 and l44, Indian Penal Code. The Town Sub-Magistrate of Trichinopoly who tried the case discharged the 1 accused on the ground that he had not beep identified and framed a charge against the remaining accused of the offence stated. The complainant then applied to the Sessions Judge of Trichinopoly to revise the order discharing the 1 accused and the application was granted, the learned Sessions Judge directing further inquiry which was to include affording several of the prosecution witnesses an opportunity of identifying the 1 accused. In Criminal Revision Case No. 952 of 1928, Reilly, J., refused to interfere with this order.

(2.) Meanwhile, as I have said, a charge had been framed against the other accused and the first prosecution witness had been further cross-examined after charge. The question then arises as to the correct procedure to be adopted, whether, i as the petitioner urges, the joint trial of all the accused could be resumed or whether the trial of the 1 accused must be conducted separately. The parties appear to have been canvassing this question before the local Courts, for I find an application by the 1 accused, disposed of by the Sub-Divisional Magistrate on 5 January, 1929, in which it is said that there can be no question of a joint trial, and another application by the complainant to the Sub-Magistrate insisting that a joint trial is necessitated by the circumstances. The Sub-Magistrate is, however, of a contrary opinion. I think that the views taken by these Courts are correct.

(3.) No one disputes the general principle, to which Spencer, Offg. C.J., gave expression in Inre Sogiamuthu Padayachi that ordinarily the correct course is to try an abettor with the primary offender or offenders. Where no reason to the contrary appears, the enabling provisions of Section 239 of the Criminal Procedure Code should be availed of. In the present case, however, it is I think, only necessary to consider what a joint trial would involve, to be satisfied that it cannot now be had compatibly with observing the rules of procedure.