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Sub-s STA |
2) of S. 235 deals with a case where an offence falls within two definitions and sub-s.(3) deals with a case in which a number of acts are alleged against an accused person, different com- binations of which may constitute different offences STA |
Then we come to s. 236 which provides that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences and further provides that any number of such charges ... |
It also permits that charges could be framed against an accused person in the alternative if the court thinks fit STA |
Thus, this is a special provision available in case of doubt and is neither subject to the limitations prescribed by s. 233 nor those of the other preceding provisions Ratio |
Now, if the respondent No. 1 were alone tried upon the second, third and the fourth charges the provisions of s. 235(1) could have been pressed in aid if the allegations were that the offences were so connected together as to form one and the same transaction and the validity of the trial would not have been open to an... |
Similarly if the second respondent were alone tried on the second charge his trial would not have been open to any objection if the allegation were that the offences were so connected together as to form the same transaction Ratio |
Here, however, we have a case where the prosecution alleges that there was additionally a conspiracy to which apart from the two respondents the approver and some other persons were parties and where in both the respondents were tried together Ratio |
A conspiracy must be regarded as one transaction and, there- fore, a single individual charged with it could be tried with the aid of s. 235(1) for all the acts committed by him in furtherance or in pursuance of the conspiracy without the limitations imposed by s.234(1 Ratio |
For, where all the acts are referable to the same conspiracy their connection with one another is obvious Ratio |
The only provision in the Code which permits the joint trial of more than one person is s. 239 and what we have to see is whether under that provision the two respondents could have been jointly tried for the offences with which they were charged Ratio |
Let us, therefore, examine closely the provisions of s. 239 Ratio |
It will be useful to set out the provisions of that section which run thus :" "This first thing to be noticed is that s. 239 does not read as if its various clauses can be applied only alternatively STA |
On the other hand at the end of cl STA |
f) there is a conjunction 'and STA |
If the intention of the Legislature was that the provisions of these clauses should be available only alternatively it would have used the word "or" and not "and" which has the opposite effect STA |
Grammatically, therefore, it would appear that the provisions of the various clauses are capable of being applied cumulatively STA |
The opening words of the section show that it is an enabling provision and, therefore, the Court has a discretion to avail itself cumulatively of two or more clauses STA |
Of course a Court has the power to depart from the grammatical construction if it finds that strict adherence to the grammatical construction will defeat the object the Legislature had in view STA |
The concluding portion of s. 239 shows that the provisions contained in the former part of Chapter XIX shall, as far as may be, apply to the charges framed with the aid of s. 239 STA |
Does this mean that the provisions of s. 233, 234, 235, and 236 must also be complied with STA |
Obviously, s. 233 does not override the provisions of s. 239 STA |
S. 234 cannot also be regarded as an overriding provision because reading it that way will lead to the clear result that whereas several accused persons can be charged at the same trial with any number of different offences committed by them in the course of the same transaction they cannot be tried also for -offences ... |
It could not have been the intention of the Legislature to create such a situation STA |
Again, as already stated, s. 234(1) does not override the provisions of s. 235(1) which permits trial of a person for more offences than one committed during any period provided they are so connected together as to form one transaction STA |
Unless we read s. 234(1) as not enacting a fetter on s. 235(1), it may not be possible to give full effect to the latter STA |
Now, since s. 234(1) cannot be properly read a, , ; overriding s. 235(1) there is no valid reason for construing it as overriding the provisions of s. 239 either STA |
There are also other reasons which point to this conclusion which we will set out while considering the argument advanced by Mr. Bhimasankaram STA |
Bhimasankaram contended that s, 239 must be read at least subject to ss STA |
234(1) and 235(1) on the ground STA |
that if there are certain restrictions with respect to the trial of a single accused there is no reason why those restrictions will disappear if an accused person is tried along with several other persons STA |
Thus he points out that where several persons are accused of more offences than one of the same kind committed by them jointly within a period of 12 months, the number of offences for which they could be tried cannot exceed three STA |
In this connection he relied upon the words "within the meaning of s. 224" occurring in cl STA |
c) of s. 239 STA |
These words, he contended, clearly show that cl STA |
c) of s. 239 is subject to the provisions of s. 234 STA |
In our opinion the words "within the meaning of s. 234" indicate that what was meant by the words offence of the same kind" "'persons accused of more offences than one of the same kind not exceeding three in number"or may have used the words" person accused of more than one offence of the same kind to the extent permis... |
Therefore, even if the expression "'same transaction" alone had been used in s. 235(1) it would have meant a transaction consisting either of a single act or of a series of connec- ted acts Ratio |
The expression "same transaction" occurring in cls Ratio |
a), (c) and (d) of s. 239 as well as that occurring in s. 235(1) ought to be given the same meaning according to the normal rule of construction of statutes Ratio |
Looking at the matter in that way, it is pointless to inquire further whether the provisions of s. 239 are subject to those of s. 236(1 Ratio |
The provisions of sub-s Ratio |
2) and (3) of s. 235 are enabling provisions and quite plainly can have no overriding effect Ratio |
But it would be open to the court to resort to those provisions even in the case of a joint trial of several persons permissible under s Ratio |
239.S. 236 Ratio |
is also an enabling provision to be availed of in case of doubt and it is meaningless to say that s. 239 is subject to s. 236 Ratio |
Bearing in mind the fact that the provisions in the "former part" of Chapter XIX are applicable to charges made with the aid of s. 239 only "so far as may be" it would not be right to construe s. 239 as being subject to the provisions of ss Ratio |
233 to 236 Ratio |
It was contended by Mr. Chari that the expression "former part" would apply to the first sub- division of chapter XIX which deals with the form and content of the charges and the powers of the court with regard to the absence of charge and alteration of charge Ratio |
We cannot, however, give the expression such a restricted meaning Ratio |
For, even in the absence of those words, the earlier provisions could not have been ignored Ratio |
For, it is a rule of construction that all the provisions of a statute are to be read together and given effect to and that it is, therefore, the duty of the Court to construe a statute harmoniously Ratio |
Thus, while it is clear that the sections preceding s. 239 have no overriding effect on that section, , the courts are not to ignore them but apply such of them as can be applied without detracting from the provisions of S.239 Ratio |
Indeed, the very expression 'so far as may be' empha- sises the fact that while the earlier provisions have to be borne in mind by the Court while applying s. 239 it is not those provisions but the latter which is to have an overriding effect Ratio |
Apart from this, the question whether the provisions of ss Ratio |
233 to 236 have or have no overriding effect on s. 239 Ratio |
is not strictly germane to the question considered by the High Court that is, clubbing together all the provisions of the various clauses of s. 239 Ratio |
Whether they can or cannot be read cumulatively must be determined by consideration of the language used in those clauses Ratio |
We have already indicated how those clauses may be grammatically read Ratio |
On a plain construction of the provisions of s. 239, therefore, it is open to the Court to avail itself cumulatively of the provisions of the different clauses of s. 239 for the purpose of framing charges and charges so framed by it will not be in violation of the law, the provisions of ss Ratio |
233, 234 and 235 notwithstanding Ratio |
The decision of the Allahabad High Court in T. R. Mukherji's case (IL), is directly in point and is clearly to the effect that the different clauses of s. 239 are mutually exclusive in the sense that it is not possible to combine the provisions of two or more clauses in any one case and to try jointly several persons p... |
A large number of decisions of the different High Courts and one of the Privy Council have been considered in this case Ratio |
No doubt, as has been rightly pointed out in this case, separate trial is the normal rule and joint trial is an exception Ratio |
But while this principle is easy to appreciate and follow where one person alone is the accused and the interaction or intervention of the acts of more persons than one does not come in, it would, where the same act is committed by several persons, be not only inconvenient but injudicious to try all the several persons... |
This would lead to unnecessary multiplicity of trials involving avoidable inconvenience to the witnesses and avoidable expenditure of public time and money Ratio |
No corresponding advantage can be gained by the accused persons by following the procedure of separate trials Ratio |
Where, however, several offences are alleged to have been committed by several accused persons it may be more reasonable to follow the normal rule of separate trials Ratio |
But here, again, if those offences are alleged not to be wholly unconnected but as forming part of the same transaction the only consideration that will justify separate trials would be the embarrassment or difficulty caused to the accused persons in defending themselves Ratio |
We entirely agree with the High Court that joint trial should be founded on some 'principle Ratio |
But we find it difficult to appreciate what seems to be the view of the High Court that because each `clause of s. 239 enunciates a separate principle those principles are, so to speak, mutually' exclusive and cannot be cumulatively resorted to for trying several persons jointly in respect of several offences even thou... |
The High Court has propounded that the connection described in each of the various clauses is mutually exclusive, that no two of them can exist simulta- neously in any case and that one cannot, therefore, have in any case persons connected with one another in two or more ways Ratio |
In other words, as the High Court puts it, persons included in two or more of the groups cannot all be tried together and that since there is absolutely nothing to connect one group with any other, the persons of one group cannot be tried with those of any other Ratio |
No reason has been stated in support of this view STA |
Let us consider whether there is anything intrinsically incompatible in combining two clauses of s. 239 STA |
Take cls STA |
a) and (b STA |
Cl Ratio |
a) says that persons accused of the same offence committed in the course of the same transaction may be charged and tried together STA |
b) says that persons accused of an offence and persons accused of abetment, or, of an attempt to commit such offence may also be charged and tried together STA |
Now, if persons A, B and C are tried for an offence of murder what intrinsic difficulty would there be in trying X, Y and Z of abetment of the same offence Ratio |
The transaction in which all of them have participated is the same and the abetment by X, Y and Z of the offence committed by A, B and C would itself establish the connection of their acts with those of X, Y and Z Ratio |
Next, let us take cls Ratio |
a) and (c Ratio |
c) provides that persons accused of more than one offence of the same kind within the meaning of s. 234 committed by them jointly within the period of twelve months could also be charged and tried together Ratio |
Let us consider these clauses along with another illustration Ratio |
Two persons A and B enter a house at night and first together commit the murder of a man sleeping there and then also his wife Ratio |
Each of them has committed two offences and each of them participated in the same offence Ratio |
Why can they not be tried jointly for both murders and why should there be two trials for the two murders Ratio |
The offences are of the same kind and must be deemed to have been committed in the course of the same transaction because of association and mutual connection Ratio |
Now, supposing in the illustration given A killed the man and B killed his wife Ratio |
Under cl Ratio |
c) they could be tried together because the offences are of the same kind Ratio |
It would be ridiculous to say that they cannot be tried together for jointly committing the murder of the man and the wife because cl Ratio |
a) and (c) cannot be combined Ratio |
For, without combining these two clauses their joint trial for the two offences in each of which both have participated would be impermissible Ratio |
Then take s. (a) and (d Ratio |
d) persons accused of different offences committed in the course of the same transaction can be tried together Ratio |
Let us suppose that a group of persons are accused of having been members of an unlawful assembly the common object of which was to overawe by sheer force another group of persons and take forcible possession of a piece of land Ratio |
Some of the members of the unlawful assembly carried axes with them while some others carried lathis and attacked the other group Ratio |
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