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Criminal Appeal No. 48 of 1953, decided on 19th November 1954.
(On appeal from the judgment and order of the High Court of Judicature at Lahore. dated the 30th March 1953, in Criminal Revision No. 1047 of 1952).
Ss. 233 and 537‑Provision of S 233 vital Mis joinder of charges curable under S. 537‑Trial vitiated‑May be set aside at instance of either accused or complainant.
Five accused were charged with inflicting fatal injuries to the deceased on a certain day but only some of them with causing hurt to sons of the deceased a day earlier. The two incidents were not linked together by motive or design.
Field, that the High Court which is the final Court of fact vas not in error in holding that the two incidents were independent and separate, and in ordering a re‑trial.
Where the trial is found to have been conducted in a way not authorised by law and by the rules of procedure relating to matters of a fundamental character, the decision in such a trial whether of conviction or of acquittal is of little consequence and the entire proceeding must be set aside irrespective of any question of prejudice to anyone. The disregard of an express provision as to the mode of trial concerning a vital matter cannot be treated as an irregularity curable under section 537, Cr. P. C.
Section 233 wholly prohibits a joint trial unless the case comes within the categories which are specifically excluded.
N: A. Subramania Iyer v. King‑Emperor 28 I A 257 and Palukuri Kotayya v. King‑Emperor 74 I A 65 ref.
Abdul Rahman v. The King‑Emperor 54 I A 96 dis tinguished.
In this case proceedings were set aside and re‑trial ordered at the instance of the complainant under section 439 (1), Cr. P. C., after the Crown's refusal to appeal under section 417, Cr. P. C.
S. 439‑Discre tion of Nigh Court‑Not to be interfered with unless manifestly arbitrary or capricious.
The High Court, on the complainant's petition under section 439, Cr. P. C., (the Crown having refused to appeal under section 417, Cr. P. C.,) set aside an order of acquittal on the ground of mis joinder of charges. (section 233 Cr. P. C.), and ordered re-trial of the accused.
Held, that the platter was one of discretion for the High Court and that the order could not be interfered unless the decision was manifestly arbitrary or capricious.
The High Court has at times to interfere in public interests and to prevent a failure of justice and failure of justice is not necessarily prejudice to the accused only.
It may not be usual to order a re‑trial on the ground of misjoinder when the original trial had ended in an acquittal but the High Courts have discretion to order a re‑trial in such cases also and such an exercise of discretion cannot be said to be arbitrary as the order is made on the ground that the first trial was vitiated.
S. 239 (a) Reference in F.I.R. to an occurrence taking place one day before murder ‑Murder and earlier occurrence not necessarily parts of same transaction.
One F who had abducted the daughter of the first appel lant was really the person whom the appellants wanted to punish on 12th April 1952 when, however, they caused simple injuries not to F but to F's brothers. They inquired as to where F was and while making that enquiry said 'that he had abducted their girl. On the 13th when the father of F was attacked and fatal injuries were inflicted on him, there was no enquiry with regard to F. On the other hand the case in the F. I. R., was that on the 13th April the accused having. Conspired together attacked the deceased who after the abduction of the girl had evaded the appellants when they wee trying to have the girl restored to them.
Held, that the two occurrences did not form parts of the same transaction.
Asad Ullah Khan, Advocate, Federal Court, instructed by Karam Elahi Chohan, Attorney of Appellants.
P. C. David, Advocate, Federal Court, instructed by V. H, Naqvi, Attorney for Respondent No. 1.
A. R. Changez, Advocate‑General, Punjab, (C. M. Sharif Advocate. Federal Court with him) instructed by Ijaz Ali, Attorney for Respondent No. 2.
Date of hearing : October 21, 1954.
The five appellants, Qadar Dad, Sardar and Jalal (brothers) and Allah Dad and Muhammad Khan, son and step‑son of Qadar Dad, were put upon their trial under section 302/149 and section 148, Penal Code before the Additional Sessions Judge of Gujrat, for causing injuries to Nabi Bux on 13th April 1952, which resulted in his death on the next day. Appellants Jallal, Allah Dad and Muhammad Khan were further charged under section 323/34 of the same Code for causing hurt to Nazir Ahmad (P. W. 10) and Bashir Ahmad sons of Nabi Bux deceased on 12th April 1952. All the five accused were tried together but were acquitted by the Additional Sessions Judge. Against this acquittal, the Provincial Government refused to prefer an appeal under section 417 of the Criminal Procedure Code, but. Mst. Sultan Bibi, daughter of Nabi Bux deceased filed a petition under section 439, Criminal P. C , before the High Court of Judicature at Lahore, for the revision of the order of acquittal (Revision No: 1047 of 1952). The Lahore High Court. On 30th March 1953, set aside the order and directed a re‑trial of the case on the ground that there Has a misjoinder of charges on account of different offences committed on different dates under different circumstances being tried at one and the same trial in contravention of section 233, Criminal P. C. N. A. Subramania Iyer v. King‑Emperor (28 I A 257). It is against, this order of re‑trial that the present appeal has been preferred with our leave. The question now for our consideration is, whether or not there was a mis‑joinder of charges and, if so, whether it amounted to such an illegality as to vitiate the trial and justify an order of re‑trial in revision under section 4,39, Criminal P. C. at the instance of a private prosecutor.
Counsel for the appellant conceded that in view of the very wide terms of section 439 (1), Criminal P: C. the High Court has, in a proper case, power to direct a re‑trial even at the instance of a private party, where the Provincial Govern ment has refused to take action. He, however, contended that there was no misjoinder in the present case as the two incidents, though of different dates and of causing injuries to different persons, were connected together and formed part of one and the same transaction under section 239, Criminal P. C.
It is difficult for me, however, to say that this is so. All the accused persons were charged with inflicting fatal injuries upon Nabi Bux on 13th April 1952, but only some of them with causing hurt to Nazir Ahmad (P. W. 10) and Bashi Ahmad on 12th April 1952, the victims were different and the dates of the assault were also different ; further the acts were not linked together by the same motive or design. The question whether acts are part of one and the same transaction depends for its answer upon a proper appreciation of the facts and circumstances of each case. The High Court, Which is the filial Court of facts, has taken the view that the two incidents. were independent of each other and were separate and unconnected. I am unable to say that the High Court was in error in arriving at that conclusion.
Next, it was argued that assuming that there wars 4is joinder of charges, the order of acquittal should not have been set aside as it could not be said that the error had caused, two prejudice to the accused; that section 233, Criminal P. C. was meant for the benefit of the accused and not of the com plainant. In this connection reference was made lo the decision in the case of Abdul Rahman v. The King‑Emperor (54 I A 96) for explaining the decision in N. A. Subramania Iyer v; King Emperor (1) and it was suggested that the pre judice to the accused .was assumed in the case of N. A. Subramania Iyer v King‑Emperor as without that assumption the conviction could not be set aside even though there was a failure to comply with the mandatory provisions of section 233, Criminal P. C.
But the decision in Abdul Rahman's case is in reference to section 360, Criminal P. C. relating to the recording of the evidence of witnesses‑a matter comparatively not so important; further the case does not lay down that the assump tion of prejudice in a case of violation of section 233, Criminal P. C. would be erroneous if the order is one of acquittal and not of conviction. In my opinion where the trial is found to have been conducted in a way not authorised by law and the rules of procedure relating to matters of a funda mental character, the decision in such a trial whether of conviction or of acquittal is of little consequence and the entire proceeding must be set aside irrespective of any question of prejudice to any one. The disregard of an express provis4on as to the mode of trial concerning a vital matter cannot be treated as an irregularity curable under section 537, Criminal P. C. Take the instance of a trial which should have been by a jury but has been conducted with the aid of assessors and ends in an acquittal. Is the High Court to look for prejudice to the accused in such a case before it can interfere It must not be understood, however, that every error of law or procedure leads to such a result, as is only in cases of violation of fundamental statutory provisions or the principles of natural justice that such a consequence an follow. Illegalities of a petty nature, which do not go to the root of the trial, are treated as mere irregularities and do not vitiate the trial, or render it ineffective. In the present case the trial was vitiated by the violation of a vital section, namely section 233, Criminal P. C. The order of the High Court, therefore, for a re‑trial was legally a correct order.
Whether or not action should have been taken and a re‑trial of the case directed by the High Court on a petition under section 439, Criminal P. C. is matter of discretion for the said Court and unless the exercise of such discretion is manifestly arbitrary or capricious, I would be unwilling to interfere. Under section 439, Criminal P. C. the High Court has at times to interfere in public interests and to prevent a failure of justice and failure of justice is not necessarily C prejudice to the accused only. It is true that the High Court cannot convert an acquittal into a conviction under section 439 (4), Criminal P. C. but there is no warrant for the proposition that whenever there is an acquittal the High Court becomes powerless even to direct a re‑trial under section 439 (1), Criminal P. C.
For the above reasons, I would dismiss the appeal.
I agree that this appeal be dismissed but should like to add some observations of my own.
The following contentions were raised on behalf of the appellants :‑‑‑
(1) The main ground on which re‑trial was ordered was that there was a misjoinder of charges while as a matter of fact there was no such misjoinder in view of the allegations in the F. I. R
(2) Even if there was a misjoinder there was no prejudice caused to the accused as they were acquitted and the decision of the Privy Council in N. A. Subramania Iyer v. King‑Emperor, on which the High Court has relied in ordering a re‑trial indicates that the reason. of the rule against misjoinder of charges was to prevent prejudice being caused to the accused.
(3) The observation in the order of the High Court that the dying declaration was co‑herent was an indication relating to the merits and this would cause prejudice to the appellants in the fresh trial.
There is in my opinion no force in these contentions.
Charges were framed in this case in respect of two distinct occurrences, one was the occurrence that took place on the 12th April 1952, in respect of which the allegation was that three of the appellants caused simple injuries with blunt weapons to witnesses Nazir Ahmad and Bashir Ahmad. The other occurrence was the one in respect of which the appellants were tried and acquitted namely the rioting and murder, that took place on the next day i.e. 13th April 1952. Evidence was adduced at the trial in respect of the earlier occurrence of the 12th of April, but at the end of the trial the Public Prosecutor did not press the charge relating to that occurrence because that occurrence could not be said to form part of the same transaction. The trial however proceeded in respect of both the occurrences and the question for determination is, whether that trial was bad. It is no doubt true that in the F. I. R. reference is made to the earlier occurrence, but that by itself does not justify the conclusion that the allegation was, that both the occurrences form parts, of the same transaction. Un the other hand in F.I.R. mainly deals with the occurrence on the 13th and it: proceeds on to state that on the 14th the deceased succumbed to the injuries and that on the 13th after the occurrence a statement was, recorded from him. Thereafter occurs the reference to the earlier incident in these words:
"One day before this occurrence, the two sons of the deceased were also beaten with lathis by Muhammad Khan, Allah Dad and Jalal".
There is nothing in this statement to show that the case for the prosecution was that both these occurrences formed parts of the same transaction. Similarly the evidence in the case which obviously was before the Committing Magistrate when 'he framed the charges cannot be said to have disclosed that the two occurrences formed parts of the same transaction. It is clear that Fazal Dad, who had abducted the daughter of the first appellant Qadar Dad was the person whom the appellants wanted to punish on, the 12th for when they caused simple injuries to Fazal Dad's brothers i,e., witnesses Nazir Ahmad and Bashir Ahmad, they enquired as to where Fazal Dad was and while making that enquiry said that he had abducted their girl. On the 13th when the father of Fazal Dad was attacked and fatal injuries were inflicted on him, there was no enquiry with regard to Fazal Dad himself. On the other hand the case in the F.I.R. was that on the 13th April the accused having conspired together attacked the deceased who after the abduction of the girl evaded the appellants when they were trying to have the girl restored to them. In the circumstances these two instances were rightly held by the High Court as not forming parts of the same transaction.
As far the contention that no prejudice was caused to the accused by the mis joinder the question is really not one of prejudice but is whether the law laid down with regard to the mode of trial was contravened. Under section 233, Criminal P. C. there shall be separate charge for every distinct offence and every such charge shall be tried separately except in cases coming under sections 234,. 235, 236 and 239, Criminal P. C. This‑provision wholly prohibits a joint trial unless the case' comes within the categories which are specifically excluded. Their Lordships of the Judicial Committee have no doubt observed in Subramania Iyer's case that "the reason of such a provision, which is analogous to our own provisions in respect of embezzlement, is obviously in order that the jury may not be prejudiced by the multitude of charges and the inconvenience of hearing together of such a number of instances of culpability, and the consequent embarrassment both to judges and accused". But in the same judgment occurs, the observation that contravention of of the provision with regard to the charges was not a ere irregularity Their Lordships observed as follows:
"The policy of such a provision is, manifest, anal the necessity of a system of written accusation specifying a definite criminal. offence is of the essence of criminal procedure" . . .
Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity.
The remedying of mere irregularities is familiar in most systems of jurisprudence, but would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that ,such a trial as that which has been place here shall not be permitted that this contravention of the Code comes within the description of error, omission; or irregularity".
As regards the decision of their Lordships ink Abdul Rahman. v- The King‑Emperor (94 IA 96) on which the learned Advocate for, the appellant relied, the facts of that case were entirely different, These provisions regarding the mode of trial were not contravened and when the decision in 28 IA 257 was relied on by the appellant their lordships distinguish ed that case observing that the procedure adopted in is was one which the Code positively prohibits and it was possible that it might have worked actual injustice to the accused. it does not appear to me that this‑observation, means that the contravention of the provisions regarding the mode of trial does not render the trial bad unless prejudice is caused, to the accused. As a matter of tact in a much later. decision in Pulkuri Kotayya v. King‑Emperor (74 IA 65) where the question related to the contravention of section 162, Criminal P. C. Sir John Beaumont delivering the judgment of the Board observed :‑
"When a trial is conducted in a manner different from that prescribed by the Code as in N.A Subramania Iyer's case ((1901) L R 28 I A 257) the trial is bad, and no question of curing an irregula rity arises but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under section 537 and non‑the‑less so because the irregula rity involves as must nearly always be the lost, is breach of one or more of the very comprehensive provisions of the Code".
It cannot therefore be said that the view taken by, the learned Chief Justice was not correct.
It may not be usual to order a retrial on the ground Of misjoinder when the original trial had ended in an acquittal but the High Courts have discretion to order a retrial in such cases also and such an exercise of discretion cannot be said to be arbitrary as the order is made on the ground that the first trial was vitiated. It cannot be contended that the order passed in this case is not one made for the furtherance of justice.
The observation in the order under appeal that the deceased made a co‑herent statement before the First Class Magistrate implicating all the appellants can hardly be said to be an indication of the opinion of the High Court as regards the truth of that statement or the merits of the case. In the context in which this observation occurs it is only a description of the statement. The dying declaration may be co‑herent and the Court may still not rely on it if it finds reasonable grounds for doing so. The learned Chief Justice has stated that he did not wish to go into the question relating to the merits of the case. For instance after stating the contentions raised before him by‑ the counsel who applied for retrial he observed:
"I do not wish to go into these questions because it appears to me that there is a legal error in tie trial which vitiates the entire proceedings including the order of acquittal".
I would therefore dismiss the appeal.
A.H. Appeal dismissed;
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