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TMI Blog1937 (6) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... rising that the prosecution put forward the case as one of murder for gain. The complainant immediately got in touch with the police, and, owing to action taken by them, the appellant was arrested by the Assistant Station Master at Aranghata station, with the stolen ornaments upon his person. The charge of cheating was based upon an incident which had taken place about a year previously when, it is said, the appellant, who is a Mahomedan, induced the complainant to take him into his service as a cook by masquerading as a Brahmin. The jury brought in what we can only regard as the astonishing verdict of guilty under s. 304 (Part I) and s. 381 of the Indian Penal Code, that is to say, they found that the killing of this unfortunate woman did not amount to murder and that the theft of the ornaments was entirely dissociated from it. It appears that the learned Judge was himself in some way responsible for the verdict of guilty of culpable homicide. It is plain from a rider in the verdict that the jury found the necessary intention to make out a case of murder. The learned Judge in his charge put before them the first exception, that is to say, grave and sudden provocation. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is accepted, it passes our comprehension how any jury could regard such an incident as grave provocation. The verdict on this point was, in our opinion, wholly perverse, and the learned Judge ought not to have put the exception to the jury at all. The appeal was admitted on account of the very glaring misjoinder of charges. The appellant could not possibly be tried together for the alleged cheating at the time when he obtained his service and for the murder and robbery. On behalf of the Crown the Deputy Legal Remembrancer urged that this misjoinder has been cured by s. 537 of the Code of Criminal Procedure. That section provides that no sentence shall be set aside because of something irregular in the proceedings unless prejudice has been caused to the accused. To my mind by its very terms the section appears to refer to something irregular which took place at a regular trial. Here we have exactly the opposite. There was nothing irregular in any of the proceedings in the course of the trial. The whole thing was illegal from start to finish. The well known case of Subrahmania Ayyar v. King-Emperor is clearly in point and is a binding authority. We were asked to say, however ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articular case. I am bound to say that now, after further consideration, I have reached the conclusion that the old decisions are correct. With great respect to Lort-Williams J. I do not agree that s. 403 of the Code can have any application to the case at all. The appeal is merely another stage in the trial itself. The solution of the problem depends in my opinion on the interpretation to be placed upon the words in an appeal from a conviction in s. 423. Now it might be argued that in an appeal from a conviction the only matter before the Court is the charge upon which the appellant has been convicted; but to give the words this rather artificial interpretation would unnecessarily narrow the scope of the words order him to be retried by a Court of competent jurisdiction . It is only common sense that when once the conviction and sentence have been set aside and a retrial ordered, the whole matter should be reopened. On the other hand, if I were still of the same opinion and in agreement with the decision of Lort-Williams J., I should hold with Jack J. that we ought not, whatever our own personal opinion might be, to refuse to follow the earlier decisions of this Court. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Crown appeared, but the accused was unrepresented. There was obviously a misjoinder of charges at the trial. The prosecution case briefly is that the accused was a Musalman, but pretending to be a Hindu Brahmin, he obtained employment as a cook under the complainant Naresh Chandra Chatterji, who was a Supervisor under the Nadia Central Co-operative Bank, with his headquarters at Bogoola. Two months later, on September 2, 1936, the complainant left for Krishnagar on duty, and it is alleged that the same evening shortly before the complainant was due to return the accused throttled the complainant's wife to death near the kitchen, and decamped with some of the ornaments she was wearing. Upon these allegations he was charged, already stated, with the offence of cheating by personation under s. 419 of the Indian Penal Code and of murder and voluntarily causing hurt in committing robbery under ss. 302 and 394 respectively. The offence under s. 419 was clearly distinct from the offences charged under the other sections, and quite rightly a separate charge was framed in respect of it, as required by s. 233 of the Code of Criminal Procedure. The question is whether or not a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence is that had he known the accused to be a Musalman, he would not have appointed him and would not have allowed him to cook his meal. This merely shows that the accused secured the job by cheating, and this also explains how the accused got into the complainant's house. If he was not in the house, he could not of course have committed the main crime, but it by no means follows that because he got there in the way alleged, there was any necessary connection between this and the actual offence which was committed later. Section 235(1) requires that in order that several offences may be joined in one indictment, the offences must be committed by the same person in one series of acts, and that such acts must be not merely connected together, but so connected together as to form the same transaction. The first element to establish, therefore, is a series of acts , which would necessarily imply the acts being connected together , but this will not be enough; it will have to be shown further that the acts form the same transaction . Mere sequence in time may establish the first element, but not necessarily the other. The expression so connected together as to form the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est terms that each distinct offence must form the subject of a separate charge and of a separate trial, and it is within very well defined limits that an exception is allowed. A breach of these provisions means the substitution of another mode of trial for that designed by the legislature as the best means of securing a fair trial, and a failure of justice in consequence thereof may be presumed and need not be proved. It seems to me, therefore, that the simultaneous trial of more than one charge except in the cases specifically provided for in ss. 284, 235, 236 and 239 must be bad in law. This is in fact what was laid down by the Judicial Committee in the well known case of Subrahmania Ayyar v. King-Emperor. That was a case of a trial in flagrant disregard of the provisions of s. 234, and it was held that this vitiated the trial. This is what was said:- Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity. Such a phrase as irregularity is not appropriate to the illegality of trying an accused person for many different offences at the same time, and those offences being spread over a longer period than by l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of s. 537 did not apply to transgressions of the mandatory provisions of the Code, and to this Abdul Rahman v. King-Emperor supplied a necessary and useful corrective, which was reinforced in this Court by the Full Bench case. Neither of these two cases was a case of misjoinder of charges, but they related to what might be regarded as non-vital or minor matters of procedure. Subrahmania Ayyar's case never intended to lay down that in regard to such matters infringements of the statutory provisions would not be cured by s. 537; on the other hand, it guarded against the opposite danger which lay in holding, as a Full Bench of this Court had in fact held or assumed in In re Abdur Rahman that because every error or irregularity, in so far as it contravenes the provisions of the Code, is in a sense illegal, all things which may in this view be called illegal, by that one adjective applied to them, become equal in importance and therefore susceptible of being treated alike under s. 537. It may be pointed out that this Full Bench decision related to a case in which the trial had been held on charges joined together contrary to s. 234, and the Full Bench held that s. 537 would apply, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is difficult to say how far the jury might or might not have been influenced by the evidence of cheating with reference to the charge under s. 419 of the Indian Penal Code, in arriving at their verdict on the other charges. It seems to be indeed doubtful if the evidence of cheating would be at all relevant to the charge of murder, even on the question of motive, seeing that the complainant's own evidence is that there were other occasions also when he had left on tour leaving the accused in charge of his wife, and that during the months the accused was in his employ he had given no cause for complaint and had never had any quarrel with the complainant's wife. That being so, it cannot be said that the introduction of this evidence did not occasion any prejudice to the accused. It is no answer for the Crown to say that the charge under s. 419 might be eliminated and the verdict of the jury appropriated only to the charge for murder: this would be to leave to the Court the functions of the jury, and also to convict the accused on a charge on which he would never have been really tried. The safer rule to my mind would be to hold that where the contravention of the statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On a careful consideration of the matter, I have, therefore, reached the conclusion that there was a misjoinder of charges in the present case which vitiated the trial and to which s. 537 would be no answer. The question then arises as to the order to be made. The conviction and sentence of the appellant must of course be set aside, but it would in my opinion be contrary to the ends of justice to direct his acquittal. I agree with my learned brother that there should be a retrial. The retrial should be before the Sessions Judge and a jury in respect of the main offences committed on September 2, 1936, while as regards the offence of cheating under s. 419 of the Indian Penal Code, it should be before a Magistrate of the First Class, should the Crown deem it necessary to proceed with this charge. As regards the main offences, the retrial should be on a charge of murder under s. 302 of the Indian Penal Code (and not under s. 304, Part I), coupled with a charge under s. 394. On the facts of the case as disclosed by the evidence it is difficult to understand how the jury could bring in a verdict of guilty under s. 304 (Part I), instead of s. 302. The accused had made a conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s acquitted of these charges at the trial now set aside will not in my opinion bar a retrial in respect thereof. There is clear authority in support of the view that when a conviction is set aside and a retrial ordered, the whole case is reopened, and the accused may be tried again on all the charges originally framed. See Nazimuddin v. Emperor*. In this case the accused was committed to the Sessions under ss. 148 and 304 of the Indian Penal Code, but was sentenced under s. 147. On an appeal from the conviction, the conviction under s. 147 was set aside as untenable on the findings of the Judge, and a retrial ordered on the original charges. There was no formal order of acquittal recorded in respect of the original charges, but there can be no doubt that a conviction under s. 147 amounted to an acquittal on the other charges. It was held that, having regard to the provisions of s. 423 of the Code of Criminal Procedure, the provisions of s. 403 could not apply. Reference was made to the case of Krishna Dhan Mandal v. Queen-Empress. In this case it was held that where the appellate Court reverses the verdict of a jury and orders a retrial, the verdict is set aside in its entirety, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the principle autre fois acquit would, therefore, apply. He further stated that the terms of s. 423(1) showed that no power was given to the appellate Court to interfere with an order of acquittal in the absence of an appeal from that order, and he expressly dissented from the earlier cases. As, however, the appellant was entitled to be, acquitted on other grounds, as to which both the learned Judges were in agreement, his Lordship did not think it necessary to refer the question to a Full Bench. A similar view was expressed by Cunliffe J. in the last of the three cases mentioned above, but my learned brother Henderson J. reserved his opinion on the point. It seems to me that the reasons given by Lort-Williams J. are not at all sound. Section 403(1) on which he relies has no application, inasmuch as the retrial will not be a second trial, but only a continuation of the first trial. See Queen-Empress v. Jabanulla. The trial of the accused would not in fact be concluded until the retrial has been held, and it cannot, therefore, be said that an acquittal at the original trial (no, more than a conviction) remains in force during the retrial within the meaning of s. 403(1). The m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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