Sharma, J. - (1.) THE applicants Govind Narain and Badri Narain are being tried jointly in the court of the City Magistrate, Jaipur, under sec. 6 of the Essential Supplies (Temporary Powers) Ordinance I949, for selling cement in contravention of the clauses 4, 6 and 10 of the Cement Control Order. THE following charges were in the first instance framed against them on the 24th August, 1949: - Against Badri Narain - That you on or about Oct. , Nov. , 1948 sold 400 bags of cement out of 1600 bags of cement which was acquired in accordance with the permit of Cement Controller, Jaipur, for being used for the construction of the building of the Laxmi Metal Industries to the Bullion Association, Jaipur, at Rs. 10/8/- per bag, a rate higher than the control rate of Rs. 87/8/- per ton without obtaining the order of the Controller and as such used the said cement otherwise than for the purpose for which it was obtained and thereby committed an offence punishable under sec. 10, 4 and 6 of the Cement (Control of Distribution) Order, 1947 and Notification No. 6469/c dated 7. 2. 48 read with sec. 6 of the Rajasthan Essential Supplies (Temporary Powers) Ordinance, 1949 and within my cognizance. Or in the alternative, charge you Badri Narain as follows: - That you on or about Oct. , November, 1948 sold 400 bags of cement to the Bullion Association Jaipur at Rs. 10/8/- per bag, a rate higher than the Controlled rate of Rs. 87/8/- per ton without obtaining the order of the Controller and thereby committed offence punishable under Cl. 10 and 4 of the Cement (Control of distribution) Order, 1947 and Notification No. 6469/c dated 7. 2. 48 real with sec. 6 of the Rajasthan Essential Supplies (Temporary Powers) Ordinance, 1949 within my cognizance and thereby direct that you be tried by this court in the sail charge. Against Govind Narain - That you 01 or about Oct. 1948 sold 17 bags of cement out of 1600 bags of cement which was organised in accordance with the permit of the Cement Controller, Jaipur, for being used for the construction of the Building of the Shri Laxmi Metal Industries Ltd. to the Bullion Association Jaipur at Rs. 10/8/- per bag, a rate higher than Rs. 87/8/-, control rate of cement per ton, without obtaining the order of the controller and as such used the said cement otherwise than for the purpose for which it was obtained and thereby committed an offence punishable under Cl. 10, 4 & 6 of the Cement Control & Distribution Order 1947 and Notification No. 6489/c dated 7. 2. 48 read with sec. 6 of the Rajasthan Essential Supplies (Temporary Powers) Ordinance, 1949 and wit in my cognizance. Or in the alternative charge you Govind Narain as follows: - That you on or about Oct. , Nov. 1948 sold 17 bags of cement to the Bullion Association, Jaipur at Rs. 10/8/- per bag at a rate higher than the control rate of Rs. 87/8/-per ton without obtaining the order of the Controller and thereby committed tan offence punishable under Cl. 10 & 4 of the Cement Control & Distribution Order 947 and Notification No. 6409/cf read with section 6 of the Rajasthan Essential Supplies (Temporary Powers) Ordinance 1949 within my cognizance. And I hereby direct that you be tried by this court under this charge.
(2.) THEY filed a revision in the court of the Sessions Judge, Jaipur on the ground that they should not be jointly tried and that the evidence was not prima facie, sufficient for drawing up charge, and they be therefore dis-charged. The learned Sessions Judge made a reference to the High Court that the charges be quashed and the accused be discharged. The High Court, however, rejected the reference on the ground that the accused should first move the trial court. This order is dated 6th January, 1950. When the case went back before the learned Magistrate the accused pressed the objection that they should not be jointly tried. The learned Magistrate by his order dated 5th of April 1950 quashed the principal charge, bat maintained the alternative charge against both the accused. Both the accused went in revision to the court of the Sessions at Jaipur, but the learned Sessions Judge held that there was no illegality in the joint trial and that there was prima facie evidence against both the accused. Consequently the revision was dismissed. It was argued on behalf of the applicants by Shri C. L. Agarwal, Advocate, that the charges that have now been maintain d are quite distinct charges. Badri Narain has nothing to do with the charge framed against Govind Narain and the latter has no connection with the charge framed against Badri Narain. The charge against Govind Narain is that on or about October-November, 1948 he sold 17 bags of cement to the Bullion Association, Jaipur at the rate of Rs. 10/8/-per bag which was higher than the control rate of Rs. 87/8/- per ton without obtaining the order of the Controller, whereas the charge against Badri Narain is that he sold 400 bags of cement to the Bullion Association Jaipur at 10/8/- per bag on or about Oct.-Nov. 1948, without obtaining the order of the Controller. Ordinarily under sec. 233 Cr. P. C. for every distinct offence, of which any person is accused- there should be a separate charge and every such charge should be tried separately. In cases, however, mentioned in secs. 234, 235, 236 and 239, a joint trial may be held. It was argued that none of the sections 234, 235, 236 applies to this case. The prosecution says that sec. 239 applies to this case as the offences were committed by both the accused in the course of the same transaction. It was contended that the two offences were not committed in the course of the same transaction. The rulings reported in A. I. R. 1919 Bom. 111 (Ram Narain Amarchand & another v. Emperor), A. I. R. 1931 Patna 102 (Abdul Rahman vs. Emperor), A. I. R. 1927 Calcutta 330 (Tawiz Khan vs. Rajbali and another), A. I. R. 1944 Calcutta 224 (Becha Ram Mukerji v. Emperor), A. I. R. 1940 Patna 449 (Nathu Chau-dhari & others v. Emperor), and A. I. R. 1938 P. C. 130 (Babulal Gokham v. Emperor) were relied on. It was further argued that the evidence against neither of the accused was prima facie sufficient to support the charge framed against them. On behalf of the prosecution it was argued that both the offences were committed in the course of the same transaction and for this the ruling of Lahore High Court in A. I. R. 1950 Lahore 109 (M. Ata Mohammed v. Crown) was relied on. As regards the second contention of the accused it was argued that there was some evidence against both the accused and therefore they could not be discharged. I have considered the arguments of the learned counsel for both the parties. So far as the second contention is concerned, it is enough for me to say that I do not think that there is entire absence of any evidence against either of the accused. At this stage the only thing that has to be seen is whether there is prima facie evidence against the accused. The learned Magistrate has found the evidence to be prima facie sufficient and I have no justification for going against his view in this revision. On the first point, however, the accused stand on firmer ground. It is a very statutory principle of law enshrined in sec. 233 of the Code of Cr. Procedure 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. There may, however, be cases in which a joint trial will be more convenient and may not prejudice the accused. These cases are provided in secs. 234, 235, 236 & 239 Cr. P. C. It is not even the prosecution case that secs. 234 or 235 or 236 applies to the present case. Stand has been taken only on sec. 239 (d) of Cr. P. C. which says that the persons accused of different offences committed in the course of the same transaction may be tried jointly. Here again it is not incumbent upon the court to hold a joint trial. It has been left to the discretion of the court. If, however, the different offences committed by different accused are not committed in the course of the same transaction, their joint trial shall altogether be illegal. This has been held in A. I. R. 1940 Patna 494, and A. I R. 1919 Bom. 111 referred to above. The meaning of the words "same transaction" occurring in sec. 235 and 239 has been considered in all the rulings cited above. The conclusion to be derived from these authorities is that the different acts, in order to form part of the same transaction, should have between them proximity of time, community of intention, and continuity of action. Greatest stress has, however, been laid upon community of intention and continuity of actios. In the present case, it can-not be said that there was community of intention and continuity of action on the part of both the accused when they sold cement on different dates. It is not the prosecution case that the acts of the accused were the result of any conspiracy. Apparently the charge against each accused shows that other accused had nothing to do with it. In the charge relating to 400 bags, responsibility has been laid at the door of Badri Narain only and in the charge in respect of 17 bags, against Govind Narain alone. I have failed to find any community of intention or continuity of action between these two accused for the different actions for which they have been made responsible in the charges drawn against them. The learned Magistrate only says that because the bags were soli from the same godown by both the accused and that the lease holds in the name of both of them, in respect of this godown, there was community and continuity of purpose between the two accused. The learned Sessions Judge says that because both the accused were brothers residing in the same house and committed an overt act in respect of the same commodity, they had community of purpose. The lower Court iocs not say that there was continuity of action between the two accused. This is by far, according to the authorities, the most important thing for making different acts part of the same transaction. Even if there is community of purpose alone, the acts would not form part of the same transaction. It was held in A. I. R. 1940 Patna 499 that community of purpose would not be enough to make the offences part of the same transaction, if the offenders act independently. In the present case there is nothing to show that the two accused did not act independently. Even, therefore, if it is assumed that they had a common purpose it cannot be said that they committed the two offences in the course of the same transaction. However, there is nothing on the record to show that there was any community of purpose between the two accused. Simple because they are brothers and are living in the same house or because they sold the same commodity, it cannot be said that there is any community of purpose. To my mind, the case is not covered by sec. 239 (d) Cr. P. C. and a joint trial would be illegal. The learned Sessions Judge has said that it has not been shown what prejudice would be done to the accused if they are tried jointly. The question of prejudice is not relevant at this stage because the objection has been taken as soon as the charges have been framed. If the accused had been convicted at the joint trial, then there would have been an occasion to see whether any prejudice was caused to them. There is, however, authority to this effect that where a joint trial is forbidden by law but it is held, it would be such an illegality that the conviction would be liable to be quashed even though no prejudice has been caused. The application for revision is allowed. The charges against both the accused are quashed. The case is sent back to the District Magistrate, Jaipur with a direction that both the accused be tried separately either by his own self or by any other Magistrate except Shri Birendra Prashad Garg, who may be competent to try the case. .;