DESAI, J. - (1.) THE following question has been referred to us by our brother Chaturvedi for our opinion : "Are the different clauses of section 239, Criminal Procedure Code 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 shop 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, Section 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 Chhotey Lal were guilty of a conspiracy, and in addition Mukerji was guilty of the offence of Section 477 and Chhotey Lal of abetting it, and Chhotelal was guilty of the offence of Section 420 (for obtaining payment for the grains without having to pay a penalty with the help of the false document Section 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 Section 120 -B, three offences of Section 477A, three offences of abetment of the offence of Section 477A, three offences of Section 420 and three offences of abetment of the offence of Section 420. They were tried before the Additional Sessions Judge who has convicted both under Sections 120 -B, Mukerji also under Section 477A and Section 420 read with Section 109 and Chhotey Lal also under Section 420 and Section 477A, read with Section 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 Section 239, Criminal Procedure Code 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 Sections 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. 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 Judge passes one sentence for the various offences committed by an accused or passes separate sentences but makes them concurrent, the holding of a joint trial in a doubtful case is all the more indefensible. In the present case, the learned Sessions Judge has not passed separate sentences for the eighteen offences. When he passed one sentence for three offences committed by each of the appellants it was nothing but an act of imprudence to try him for all the three offences and incur the risk of the joint trial being held to be invalid. The Public Prosecutor also is charged under the duty of seeing that the joinder of charges or persons is legal and of advising the Judge not to hold a joint trial in a doubtful case.
(3.) THE normal rule is that "for every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately," see Section 233 of the Code. There are exceptions to this normal rule and they are all specified in the section. They are "the cases mentioned in Sections 234, 235, 236 and 239". There are no other exceptions and any joinder of charges which is not covered by the above -mentioned sections is illegal. This is made clear in the illustration to the section which says that if A commits a theft in one transaction and causes hurt in another transaction, he "must be" separately charged and separately tried for the two offences. The exceptions are to be construed strictly. In - 'Shanker v. Emperor', 11 All LJ 188 (A), Knox, J., observed : "A court cannot and ought not to treat a case before it as in exception to the general and broad rule, unless it is satisfied that the charge should be brought within one of the four exceptions." ;