The distinct offences connected in a single charge may not vitiate the entire trial if they could have been tried together.

JUDGMENT

Lancelot Sanderson, C.J. - This is a Rule calling upon the District Magistrate to show cause why the convictions of and sentences passed upon the petitioners should not be set aside on the first ground mentioned in the petition; and the first ground is, that "the trial of the petitioners on charges framed in contravention of Section 233, Criminal Procedure Code, was without jurisdiction and void and the convictions bad and sentences and orders u/s 106 of the Criminal Procedure Code passed on such trial are illegal and fit to be quashed."

2. The charges, (as they appear from the petition) against the petitioners, who are 14 in number, were, first, u/s 147 of the Indian Penal Code, secondly, u/s 149 read with Sections 325 and 323, and, thirdly, against some of the petitioners u/s 353 of the Indian Penal Code. The learned Vakil for the petitioners raised no objection to the charge u/s 147 of the Indian Penal Code and that is the section under which the petitioners have been sentenced. Some of the petitioners have been convicted in respect of the other charges, but no separate sentences have been passed in respect thereof.

3. The objection, which the learned Vakil for the petitioners, has raised on this rule, may be illustrated by way of reference to the charge u/s 149 of the Indian Penal Code. It was stated in the petition as follows:

That you on or about the 25th May or July 1921 at the same place were members of an unlawful assembly and in prosecution of the common object of that assembly, as stated in the first charge, several members of the said assembly caused grievous hurt to havildar Raghubir Raut and simple hurt to constable Prem Lal Ghose, constable Har Kishore Barua, constable Mohendra Chundra De, Yar Ali Matbar, Abdul Rashid and Oli Mia Doctor and you are thereby u/s 149 of the Indian Penal Code guilty of causing the said offences which are punishable under Sections 325 and 323 of the Penal Code.

4. The learned Vakil for the petitioners has argued that that charge is a bad charge for the reason that it contains more than one distinct offence and he has relied upon Section 233 of the Code of Criminal Procedure. That section provides, "for every distinct offence of which any person is, accused, there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in Sections 234, 235, 236 and 239."

5. That charge, in my judgment, did relate to more than one distinct offence, and, consequently, it is a bad charge under the law. For that reason, in my judgment, the learned Vakil's argument to that extent is well founded. But when he went further and argued that because that particular charge was in contravention of Section 233, the whole trial was vitiated, I, with great respect to the learned Vakil's argument, was unable to agree with it. The distinct offences, which were included in that particular charge, were one series of acts so connected together as to form the same transaction and, consequently, the accused could have been charged with and tried at one trial for each such offence, see Section 235 of the Criminal Procedure Code, and the evidence relating thereto could have been presented to the Court by the prosecution if those distinct offices had been contained in separate charges. It seems to me to be of entirely different case to that which was decided by the Judicial Committee of the Privy Council in the case of Subrahmania Ayyar v. King-Emperor 25 M. 61 : 11 M.L.J. 233 : 3 Bom. L.R. 540 : 28 I.A. 257 : 5 C.W.N. 866 : 2 Weir. 271 : 8 Sar. P.C.J. 160 upon which the learned Vakil relied. That was a case where the accused was tried on an indictment, in which he was charged with no less than 41 acts, these acts extending over a period of years. This was clearly in contravention of Section 234 of the Criminal Procedure Code which provides that a person may only be tried for three offences of the same kind if committed within a period of 12 months. The Judicial Committee