DESAI, J. :- The following question has been referred to us by our brother Chaturvedi for our opinion :

"Are the different clauses of Section 239, Cr. P.C. mutually exclusive or can recourse be had to two or more of them for the purposes of jointly trying more than one person ?"

The question arose before our learned brother when he was hearing an appeal filed by Mukerji and Chotey Lal against their convictions under Sections 120B, 420 and 477A, I.P.C.

2. The case against the appellants is as follows :

Chotey Lal is a partner of a firm carrying on business in Hardoi. Mukerji is a railway employee in charge of a railway grain chop at Allahabad. There was a contract between, the railway and Chotey Lal for the supply of grains to the railway grain shop. According to the contract, the grains had to be booked at Hardoi for Allahabad by 25-1-1947. The firm, however, booked the grains after 25-1-47. Under the contract it was liable to pay a penalty to the railway for the delay in booking them. Chotey Lal entered into a conspiracy with the other appellant to defraud the railway and in pursuance of the conspiracy the other appellant prepared a false document known as S. 10 on 1-3-47 stating that the grains had been booked on 25-1-47. He took delivery of the grains and no penalty was charged from the firm. Thus he and Chotey Lal were guilty of a conspiracy, and in addition Mukerji was guilty of the offence of S. 477 and Chhotey Lal of abetting it, and Chhotey Lal was guilty of the offence of S. 420 (for obtaining payment for the grains without having to pay a penalty with the help of the false document S. 10) and Mukerji for its abetment. The above was one transaction; there were two other and similar transactions of 22-4-47 and 24-5-47. The two appellants were prosecuted jointly for committing three offences of S. 120-B, three offences of S. 477A, throe offences of abetment of the offence of S. 477A, three offences of S. 420 and three offences of abetment of the offence of S. 420. They were tried before the Additional Sessions judge who has convicted both under Ss. 120-B, Mukerji also under S. 477A and S. 420 read with S. 109 and Chhotey Lal also under S. 420 and S. 477A, read with S. 109, Penal Code.

In the appeal they contended before our brother Chaturvedi that their trial for three offences committed, by each of them in each of three different transactions was illegal. It was contended on their behalf that the various clauses of S. 239, Criminal P.C. are mutually exclusive and that two or more than two of them cannot be combined to validate a joint trial. On behalf of the State, it was contended that the various clauses of the section can be combined to justify a joint trial and that Ss. 234 to 239 can also be combined to justify a joint trial. Our learned brother being of the view that the question raised is of general importance and has not been authoritatively dealt with by this Court has referred it to a Bench for its decision.

3. Before I deal with the question I must deprecate courts taking unnecessary risk in holding joint trials in doubtful cases. I consider it nothing short of foolishness to hold a joint trial, unless its legality is beyond dispute, and take the risk of the trial being held to be invalid by higher court. If the higher court does not order retrial, there may arise serious miscarriage of justice from, the holding of the joint trial. If it orders retrial, though justice may be done ultimately, it would be done after a waste of public time and money and unnecessary expenditure and inconvenience to the parties. There can be no excuse for all this. The law is that a joint trial may be held and not that it must be held. A court is never obliged to hold a joint trial. Even where it can hold it, it is open to it to hold separate trials for the various offences. A prudent Judge would, therefore, always hold separate trials whenever he has the slightest doubt about the validity of a joint trial.

Further, when, a J