The general principle that an abettor should be tried with the primary offender may not be practicable in specific cases due to the stage of proceedings and potential complications in evidence admissibility.

Curgenven, J.

1. The petitioner is the complainant. He filed a complaint against five persons which was taken on file against accused 2 to 5 as voluntarily causing grievous hurt under Section 325, Indian Penal Code, and against 1st accused, who is a pleader, as abettor of that offence, under Sections 325 and 114, Indian Penal Code. The Town Sub-Magistrate of Trichinopoly who tried the case discharged the 1st accused on the ground that he had not been identified, and framed a charge against the re maining accused of the offence stated. The complainant then applied to the Sessions Judge of Trichinopoly to revise the order discharging the 1st accused and the application was granted, the learned Sessions Judge directing further inquiry which was to include affording several of the prosecution witnesses an opportunity of identifying the 1st accused. In Criminal Revision Case No. 952 of 1928, Reilly, J., refused to interfere with this order.

2. Meanwhile, as I have said, a charge had been framed against the other accused and the first prosecution witness had been further cross-examined after charge. The question then arises as to the correct procedure to be adopted,--whether, as the petitioner urges, the joint trial of all the accused could be resumed or whether the trial of the 1st accused must be conducted separately. The parties appear to have been canvassing this question before the local Courts, for I find an application by the 1st accused disposed of by the Sub-divisional Magistrate on 5th January, 1929, in which it is said that there can be no question of a joint trial, and another application by the complainant to the Sub-Magistrate insisting that a joint trial is necessitated by the circumstances. The Sub-Magistrate is, however, of a contrary opinion. I think that the views taken by these Courts are correct.

3. No one disputes the general principle, to which Spencer, O.C.J., gave expression in Sogaimuthu Padayachi v. King-Emperor (1925) I.L.R. 50 M. 274, that ordinarily the correct course is to try an abettor with the primary offender or offenders. Where no reason to the contrary appears, the enabling provisions of Section 239 of the Criminal Procedure Code should be availed of. In the present case, however, it is, I think, only necessary to consider what a joint trial would involve to be satisfied that it cannot now be had compatibly with observing the rules of procedure.

4. Suppose, then, that the 1st accused is reinstated in the dock along with the remaining accused. The proceedings against those accused, as I have said, have extended to the framing of a charge and to the further cross-examination of a witness after charge. One of two courses must then be pursued. Either that part of the proceedings against accused 2 to 5 which took place after the order discharging 1st accused was passed must be expunged so as to restore them to that point in the inquiry which has been reached in the case of the 1st accused, or inquiry must be conducted solely into the 1st accuseds case until it reaches the stage at which it stands against the other accused. For adopting the former alternative I can find no justification. It is not to be found in the order directing further inquiry against the 1st accused. Cancellation of the charge could only be justified on the ground that it had been improperly framed, and no such ground can be alleged. We are left then with the second alternative, and that presents even greater difficulties. Assuming that the inquiry is taken up against the 1st accused at the point where it was dropped, the next step would be the examination of P.Ws. 6 to 9 touching their identification of the 1st accused, and their cross-examination upon this question. Their statements would be evidence against the 1st accused, but although what they said might bear upon the case against the others, it would not be evidence against them. The Court would have to distinguish in its mind between what was admissible against one of the