JUDGMENTBY: RUSSELL, J

The appellant was charged with the armed robbery of two persons Tee Puet Kiat and Tee Kern on Chuan Moh San estate, Tenang, in the State of Johore between 7 and 8 p.m. on the 20th of May, 1948, an offence punishable under sections 392 and 397 of the Penal Code. The prosecution evidence tended to show that on this particular evening a number of people were robbed in three different coffee-shops on the above estate, the three shops being situated on the estate road within a distance of some 30 to 40 yards of each other. The two complainants alleged that they were robbed in two different shops at different times, the first robbery taking place at 7 p.m. and the second at 8 p.m. Only one charge was framed against the appellant in respect of the two robberies which read as follows:--

That you between 7 and 8 p.m. on the 20th of May, 1948 on Chuan Moh San

Estate, Tenang in the State of Johore, robbed Tee Puet Kiat and Tee

Khern and at the time of committing the said robbery you were armed

with a deadly weapon, to wit a revolver and that you thereby committed

an offence punishable under sections 392 and 397 of the Penal Code.

It was argued on behalf of the appellant that the framing of one charge in respect of two robberies was an illegality and that the trial was thereby vitiated.

Sections 163 of the Criminal Procedure Code provides that for every distinct offence of which any person is accused there shall be a separate charge and the robbery of two different persons in different places at different times is clearly two distinct offences and two separate charges ought to have been framed against the appellant in respect thereof. We have therefore to decide whether this failure to frame two separate charges is an illegality or only an irregularity which can be cured under the provisions of section 422 of the above-mentioned Code.

In support of his argument that this failure was an illegality, Mr. Chia, counsel for the appellant, relied on the case of NA Subramania Iyer v King Emperor (1900-1) 28 Indian Appeals 257. This case was a decision of the Privy Council and was followed in two later cases, also quoted by Mr. Chia. These two cases are:-- Gul Mohamed Sircar v Cheraru Mandal (1905) 10 Cal WN 53, Emperor v Fattu (1903) ILR 26 Allahabad 195.

The first of these two decisions was a decision of the High Court of Calcutta sitting in its Criminal Revisional jurisdiction and the two learned judges were of the opinion that the joinder in one charge of the two distinct offences though arising out of the same transaction was an illegality fatal to the trial.

In the latter case the accused was charged in the same charge with, and convicted of, committing three or four dacoities on the same night in different houses. It was held that the conviction could not be sustained, the Court holding that there ought to have been a separate charge in respect of each dacoity.

Again, in the case of Johan Subarna v King Emperor (1905) 10 Cal WN 520 the Calcutta High Court held that the joinder in one charge of two offences, namely, attempted cheating, committed on two successive dates was an illegality which vitiated the trial and which could not be cured by section 537 of the Indian Criminal Procedure Code which corresponds to section 422.

In each of these three cases the learned Judges based their decision upon Subramanias case being of the opinion that in that case Their Lordships of the Privy Council decided that a defect under section 233 was fatal to the trial.

This decision of Their Lordships was reviewed in the case of Ram Subheg Singh v King Emperor (1914-15) 19 Cal WN 972 where Sharfuddin, J. (Beachcroft, J. and Fletcher, J. having differed) held that Subramanias case was not an authority for the proposition that failure to observe the first part of section 233 was fatal to a trial, and he further held that where a charge was framed against an accused person in respect of hurt to

Click Here to Read the rest of this document