Judgement

Consolidated Appeals (No. 65 of 1937), by special leave, from a judgment of the High Court (July 10, 1936) which modified the convictions but upheld the sentences passed upon the appellants by the Chief Presidency Magistrate of Calcutta (June 6, 1935).

The appellants, Babulal Choukhani and Sailendra Nath Mukherjee, were charged, together with a number of other persons, with being parties to a criminal conspiracy to commit theft of electric energy by a system involving tampering with the consumers meters. Choukhani was also charged with having committed theft of electric energy, and Mukherjee with having abetted him in the commission of that offence.

The facts, the form of the charges, and the relevant statutory provisions appear from the judgment of the Judicial Committee.

The Chief Presidency Magistrate convicted Choukhani of conspiracy, and of theft of electricity under

s. 39 of the Indian Electricity Act, 1910, and sentenced him to one years rigorous imprisonment and a fine of Rs.1000, but passed no separate sentence on the charge of conspiracy. He convicted Mukherjee of conspiracy and of abetment of the theft by Choukhani, and sentenced him to two years rigorous imprisonment, but passed no separate sentence on the charge of abetment.

On appeal by the appellants the High Court (Derbyshire C. J. and Costello J.) held that the charge of conspiracy failed, but that that did not make the trial illegal, 7 the test to be "applied for judging of the validity of a trial which purports "to have taken place under the provisions of s. 239 of the "Criminal Procedure Code" being the accusation made and not the result of the trial; and, dealing with the exercise by the magistrate of his discretion under s. 239 of the Code, they said " There is, in our opinion, no reason whatever for supposing that the charge under s. 120B of the Indian Penal Code was made for any evil purpose. We must take it.... that the learned magistrate, acting in his judicial discretion, was of opinion that prima facie the evidence given in chief by the prosecution witnesses had come to a stage in the proceedings warranting a finding of the conspiracy charge....We must therefore hold that "having regard to all the facts before the magistrate at the "time when he was framing the charges against the accused "as directed by s. 254 of the Code of Criminal Procedure, he "was acting judicially and properly exercising the discretion "given him by s. 239." Having held that the trial on the charges as framed was legal, they affirmed the convictions in respect of theft and abetment of theft, and upheld the sentences passed on each of the appellants.

By s. 239 (d) of the Code of Criminal Procedure persons accused of different offences committed in the course of the same transaction may be charged and tried together, and the questions in this appeal were whether the trial of the appellants was void for misjoinder of charges and persons, and whether the correctness of the joinder which depends on the sameness of the transaction is to be determined by looking at the accusation or by looking at the result of the trial.

1938. Jan. 24, 25, 27, 28. Garden Noad and J. M. Pringle for the appellant Choukhani. The main ground of appeal raises the question—of great public importance in the administration of criminal law in India—whether the trial was not void for misjoinder of charges and persons. The important section of the Code of Criminal Procedure is s. 239 (d) the offences must be committed in the course of the same transaction; there has been a confusion between the words same "transaction" and conspiracy. [Reference was also made to ss. 233, 234 and 235 of the Criminal Procedure Code.] Sect. 120 (A) and (B) of the Indian Penal Code is a comparatively recent section dealing with criminal conspiracy, and the important words are "When two or more persons agree to do, or cause to be done,—(1) an illegal act." There must be an agreement, and it must be an illegal act. It is s