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During the course of the attack one person from the second group was killed, as a rest of blows with an axe inflicted by the aggressors A, B and C. Two persons of the second group sustained grievous hurt as a result of lathi blows and one person sustained simple hurt Ratio |
Let us say that the grievous hurt was caused as a result of lathi blows given by X and Y, simple hurt was caused by lathi blows given by Z Ratio |
Here, the offences committed were those under ss Ratio |
147, 302, 325 and 323, I.P.C Ratio |
The offences being different and the persons commiting the offences being different, they could not be tried jointly only with the help of cl Ratio |
a) of s. 239 Ratio |
Nor again, could they be tried jointly only with the help of cl Ratio |
d Ratio |
Yet the transaction in which the offences were committed is the same and there is a close association amongst the persons who have committed the different offences Ratio |
What intrinsic difficulty is there in trying them all together simultaneously availing of cls Ratio |
a) and (d) of s. 239 Ratio |
These are enabling provisions which circumstance implies that the court may avail itself of one or more of these provisions unless doing so would amount to an infringement of any of the provisions of the Code Ratio |
All these persons can be jointly tried for offences under s. 147 by recourse to cl Ratio |
a Ratio |
So also A, B and C could be jointly tried together for an offences under s. 302 Ratio |
X and Y can be charged not only with offences under ss Ratio |
147 and 325, I. P.C. but also under s Ratio |
302 read with s. 149 Ratio |
Similarly Z can be charged with offence's under ss Ratio |
147, 323 and offences under s. 302 Ratio |
read with s. 149 and s. 325 Ratio |
read with s. 149 Ratio |
The same offence committed by all of them is that under s. 147 and all of them can be tried jointly in respect of that offence under cl Ratio |
Similarly, if we take cl Ratio |
d) by itself all of them can be tried jointly for the different offences committed by each of them in the course of the same transaction and if cl Ratio |
a) is unavailable they could not be tried for the offence under s. 147 at the same trial Ratio |
This means that the trial for an offence under s. 147 will have to be separated from the trial for the different offences committed by them Ratio |
It is difficult to appreciate what purpose would be served by separating the trial for the same offence from the trial for different offences Ratio |
To repeat, the object of the legislature in enacting s. 239, Cr Ratio |
P.C. clearly was to prevent multiplicity of trials and not only would that object be defeated but an extraordinary result will ensue if the various clauses of s. 239 are read disjunctively Ratio |
The reasons given by the Allahabad High Court, therefore, do not merit acceptance Ratio |
The decision in Singarachariar's Case 1934 Indlaw MAD 352 Ratio |
C.), has really no bearing upon the point before us Ratio |
What was held there was that ss Ratio |
235 (1) and s. 236 are mutually exclusive and if a case is covered by one of them it cannot be covered by the other Ratio |
In that case the question was whether a person who was first tried for an offence under s. 380, I.P.C. for stealing a blank second class railway ticket from the booking office, tried, for it and acquitted, could not be tried subsequently for the offence of forgery by making entries in that ticket and using it Ratio |
The acquittal in the previous case was urged as a bar under s. 403(1) of the Code to the trial for an offence under s. 467, I.P.C Ratio |
The contention apparently was that this was a case which fell under s. 236, Cr Ratio |
P.C. and that if he had been tried alternatively for both the offences at the same trial the Court could have dealt with him under s. 237, Cr Ratio |
The High Court, however, held that to be a kind of case which fell under s. 235(1) of the Code and that since that was so, the provisions of s. 236 were excluded Ratio |
It is difficult to appreciate how this case assists the conclusion arrived at by the High Court Ratio |
In D.K. Chandra's Case 1951 Indlaw MUM 117, F. B) it was held that the provisions of ss Ratio |
234, 235 and 236 Ratio |
being exceptions to s. 233 must be strictly construed and that if joinder of charges did not fall under any of them it would be illegal and contrary to law Ratio |
The precise point which we have to consider here did not fall for consideration in that case i.e., whether the provisions of the various clauses of s. 239 could be used together or not Ratio |
This decision is, therefore, of little assistance Ratio |
On the other band there is the decision of this Court in The State of Andhra Pradesh v. Kandinmlla Subbaiah , which is to the effect that where several persons had committed offences in the course of the same transactions, they could jointly be tried in respect of all those offences under s. 239 of the Code of Criminal... |
There, nine persons were jointly tried for 'an offence under s. 5 (1) (c) and (d) of the Prevention of Corruption Act, 1947, and s. 109, I. P. C. read with s' 420, s. 466 and s. 467, I. P. C. and all except one for offences under ss Ratio |
420, 467/471, I.P.C Ratio |
Some of them were also charged with separate offences under some of these provisions Ratio |
Two of the accused persons preferred a revision application before the High Court of Andhra Pradesh in which they challenged the charges framed against them Ratio |
The High Court allowed the revision application Ratio |
But on appeal by the State of Andhra Pradesh to this Court, this Court held that there was no misjoinder of charges, that the introduction of a large number of charges, spread over a long period was a question of propriety and that it should be left to the judge or the Magistrate trying the case to adopt the course whi... |
In so far as some of the charges were concerned this Court pointed out that the Special judge who was to try the case should consider splitting them up so that the accused persons would not be prejudiced in answering the charges and defending themselves Ratio |
It is true that the question of reading the various clauses cumulatively did not specifically arise for decision in that case but the High Court had held that the first charge was an omnibus charge containing as many as 203 offences and that it was in direct violation of ss Ratio |
234, 235 and 239 of the Code of Criminal Procedure Ratio |
Dealing with this matter this Court held at p. 200 : "No doubt, sub-s RLC |
1) of s. 234 provides that not more than three offences of the same kind committed by an accused person within the space of 12 months can be tried at the same trial RLC |
But then s. 235 (1) provides that if in any one series of acts so connected together as to form the same transaction more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence RLC |
Therefore, where the alleged offences have been committed in the course of the same transaction the limitation placed by s. 234 (1) cannot operate RLC |
No doubt, the offence mentioned in charge No RLC |
I is alleged to have been committed not by just one person but by all the accused and the question is whether all these persons can be jointly tried in respect of all these offences RLC |
To this kind of charges RLC |
239 would apply RLC |
This section provides that the following persons may be charged and tried together, namely : (1) persons accused of the same offence committed in the course of the same transaction; (2) persons accused of abetment or an attempt to commit such an offence; (3) persons accused of different offences committed in the course... |
Clearly, therefore, all the accused persons could be tried together in respect of all the offences now comprised in charge No. 1 RLC |
This Court has thus clearly read the provisions of the various clauses cumulatively and we see no reason to read them differently RLC |
There remains the decision of this Court in K.V. Krishna Murthy Iyer v. The State of Madras (IN on which Mr. Bhimasankaram strongly relied RLC |
In that case this Court upheld the order of the High Court of Madras in quashing the charges in the exercise of its inherent powers even before the conclusion of the trial RLC |
It is true that there the charges were 67 in number and spread over a long period, of time RLC |
That again was a matter which came before the High Court before conviction and not after the trial was over RLC |
When an objection is taken at an early stage, there is time enough to rectify an error RLC |
But in the case before us no objection was taken to multiplicity or misjoinder of charges before the learned Additional Sessions judge and it was only in the High Court that the point was raised RLC |
In such circumstances what the Court has to consider is whether prejudice has in fact been caused to the accused by reason of the multiplicity of charges or misjoinder, if any, of the charges RLC |
This is quite clear from the provisions of s. 537 of the Code as amended by Act 26 of 1955 RLC |
In Willie (William) Slaney v. The State of Madhya Pradesh , all the learned judges were in agreement on the point that this section and s. 535 cover every case in which there is departure from the rules set out in Ch RLC |
XIX ranging from error, omissions and irregularities in charges that are framed, down to charges that might have been framed and were not and include a total omission to frame a charge at all at any stage of the trial RLC |
The whole question has again been examined by this Court recently in Birichh Bhuian v. The State of Bihar Subba Rao J., who delivered the judgment of the Court has stated the position thus "Even if we were to assume that there has been a misjoinder of charges in violation of the provisions of ss RLC |
233 to 239 of the Code, the High Court was incompetent to set aside the conviction of the respondents without coming to the definite conclusion that misjoinder had occasioned failure of justice RLC |
This decision completely meets the argument based upon Dawson's Case RLC |
Merely because the accused persons are charged with a large number of offences and convicted at the trial the conviction cannot be set aside by the appellate court unless it in fact came to the conclusion that the accused persons were embarrassed in their defence with the result that there was a failure of injustice RL... |
For all these reasons we cannot accept the argument of learned counsel on the ground of misjoinder of charges and multiplicity of charges RLC |
Bhimasankaram, supporting the view taken by the High Court then contends that it is not permissible to frame a charge of conspiracy when the matter has proceeded beyond the stage of conspiracy and that in pursuance of it offences have actually been committed RLC |
A similar view was expressed by the same High Court in the case which was reversed by this Court in The State of Andhra Pradesh V. Kandinalla Subbaiah ( 1962 (2) SCR 194, ), and it was held that conspiracy to commit an offence being itself an offence a person can be separately charged with respect to such a conspiracy ... |
Then this Court has observed RLC |
This decision is sufficient to dispose of the point under consideration Ratio |
In Swamirathnam's case (1), which is a decision of this Court certain persons were tried for the offence of the conspiracy to cheat the members of the public and for specific offences of cheating in pursuance of that conspiracy PRE |
It was urged before this Court that there was misjoinder of charges and persons PRE |
Negativing the contention PRE |
this Court held that the charge as framed disclosed a single conspiracy although spread over several years, that there was one object of the conspiracy and that was to cheat the members of the public, that the fact that in the course of years other joined the conspiracy or that several incidents of cheating took place ... |
that the several instances of cheating being alleged to be in pursuance of that conspiracy were parts of the same transaction and, therefore, the joint trial of the accused persons for the different offences was not vitiated PRE |
No doubt, there is no discussion there as to the question whether the various clauses of s. 239 could be combined or as to the impact of the provisions of S. 233 to 236 on those of s. 239 Ratio |
The actual decision of the case is, however, directly opposed to the contention now put forward before us Ratio |
This decision has been followed in Natwarlal Sakarlal Ratio |
Mody v. The State of Bombay Ratio |
Crl. A Ratio |
No. III of 1959 decided on January 19, 1961 Ratio |
In that case the impact of s. 120-B, I.P.C. on ss Ratio |
233 and 239 of the Code of Criminal Procedure was considered by this Court and this Court observed Ratio |
Here again, the question of clubbing together of the various provisions of cls ARG |
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