P L D 1949 Lahore 574 (PLP)

The prosecution case was that on the night between the 20th and 21st of May 1949, a police party consisting of Ghulam Rasul, Head Constable, and others stopped a tonga travelling without light on the cannal bank at about 3 or 4 a.m., in which Siraj Din and Mustafa were sitting as passen gers and Ismail, accused, as the driver. From the opposite directions, A.S.I. Muhammad Mumtaz and constable Ashiq Ali came up just then. The two passengers got down and tried to run away, but were apprehended. On search of the tonga, two manhole covers‑were recovered lying under the seats. These belonged to the Lahore Corporation and had been obviously removed from some of the manholes of the sewers in the city. During the investigation that followed, Ismail accused is said to have led the police party to the shop of Barkat, accused, and the latter then unearthed another manhole cover from the compound adjoining his shop. On these facts, all these accused were tried jointly under section 411, I. P. C., with the result mentioned above. The main contention raised by the learned counsel for the petitioner is that the joint trial of Barkat with the other accused persons iii this case was illegal. He pointed out that the evidence on the record established no link between Barkat and the remaining three accused except for the cir cumstance that Ismail is alleged to have pointed out the shop of Barkat to the police. There was, however, nothing to show on the file that the third manhole cover recovered from Barkat had been stolen in the course of the same transaction in which the two manhole covers taken from the tonga were stolen, nor was there any material to indicate that this third cover had been passed to Barkat by the same persons, who had presumably transferred the other two manhole covers to Siraj Din, Mustafa and Ismail. There was also no evidence of a conspiracy between the four accused, either to steal or to receive stolen property in collaboration with one another in this case. There was obviously no question of the man hole covers taken from the tonga and the manhole cover unearthed by Barkat having been passed to the respective receivers at one point of time. The only provision of the Criminal Procedure Code, which permit; joinder of several persons in the same trial, in section

239. The relevant clauses under which the case under consideration could possibly fall would be clauses (d) and (f), which read as follows :‑ "(d) persons accused of different offences committed in the course o~ the same transaction ; and (f) persons accused of offences under section 411 and 414 of the Indian Penal Code or either of those sections in respect of stolen pro perty the possession of which has been transferred by one offence." It is conceded on behalf of the Crown that none of these clauses cov ered the circumstances of the present case and that in fact Barkat's joint trial with the other accused was illegal. The position adopted by the learned A. A. G. on behalf of the Crown is that in spite of the illegality, this Court, sitting in revision, need not interfere with the conviction or the sentence in the case, unless it is established that some prejudice was caused to the petitioner owing to the joint trial. Reliance on behalf of the Crown has been placed in this connection on Allah Dya v. ‑Emperor (5 P R 1906 (Cr.). That was a case o1 joint trial of two opposing factions in a riot case. A Division Bench of the Punjab Chief Court held that though the trial was altogether illegal and void, yet as the revision jurisdiction under section 439, Criminal Procedure Code, was by its terms entirely discretionary, the Court need not interfere unless prejudice had resulted to the accused. The learned judges referred to Hansa v. Ram Singh (36 P R 1902 F B) by way of analogy. That was a civil case and did not provide a direct authority on the point involved in the criminal case before the learned Another authority cited on behalf of the Crown is Gurdas Singh v. Emperor a Single Bench ruling of this Court reported as A I R 1938 Lah.

832. In that case, during the trial, the provisions of section 342, Criminal Procedure Code, had not been complied with. The revision petition in that case was actually allowed on the merits and the conviction was set aside. The observations of the learned judge, in that case, to the effect, that in the exercise of its revisional jurisdiction a retrial is ordered by the High Court only in cases where non‑compliance with the provisions of the Criminal Procedure Code has prejudiced the accused, amounts to a mere obiter dictum. The view pressed for by the Crown was also adopted in two other authorities of this Court, namely, Hazara Singh v. Emperor (A I R 1926 Lah. 553 (2) and Emperor v. Gian Singh (A I R 1928 Lah. 230). The former is a Single Bench decision and the latter a Division Bench judgment, but in both cases the judgment was delivered by Broadway J. They were cases of non‑compliance with the provisions of section 342, Criminal Procedure Code, in which convictions were held to be illegal, but no interference was thought necessary in revision as no prejudice had been caused to the accused. The distinction between an appeal and a revision was stressed by the learned judge as the main consideration which influenced his opinion. The learned judge derived support from the view expressed in the Division Bench judgment of the Chief Court in Allah Dya's case. I note, however, that in Allah Dya's case, the learned judges found on the facts proved that it was really a case of an affray falling within the ambit of section 160, Indian Penal Code, and it was admitted that the joint trial would not be bad or illegal on a charge under that section. In Gian Singh's case it was the Crown which had moved for obtaining a ruling on the legal point involved, but they dis claimed any intention of getting the sentence of the accused enhanced. The question was whether the case fell under section 353, Indian Penal Code, or only under section 352, Indian Penal Code and the discussion was consequently more or less academic in character. Learned counsel for the petitioner has taken his stand on they well known case of Subrahmania Ayyar v. Emperor I L R 25 Mad. 61 P C. In that case, their Lordships of the Privy Council clearly laid down the dictum that the disregard of an express provision of law as to the mode of trial was not a mere irregularity such as could be remedied by section 537 of the Criminal Procedure Code. Their Lordships observed that such a phrase as "irregularity" was not appropriate to the illegality of trying an accused person for more different offences at the same time, and these offences being spread over a longer period than by law could have been joined together in one indictment. This is the classic ruling on the subject, which still holds the field. Its authority has not been shaken by subse quent rulings given by the Privy Council. It was even referred to in Allah Dya's case and on its basis it was held that such a disregard of the express provisions of the Code would import an illegality rather than an irregu larity. My attention has been drawn to Abdur Rahman's case reported as A I R 1927 P C

44. That was a case of irregularity committed in not following strictly the provisions of section 360 of the Criminal Procedure Code, which was held curable under sections 535 and 537 of the Code. Their Lordships referred to Subrahmania Ayyar's case and observed that the procedure adopted in that case was one which the Code positively prohibited, and it was possible that it might have worked actual injustice to the accused. I do not regard this observation as in any way detracting from the authority of Subramania Ayyar's case, which was again referred by their Lordships in Babulal v. Emperor A I R 1938 P C

130. In that case an irregularity in the form of the charge was condoned, but this is very different from saying that a trial, which is ab initio void and no trial in the eye of law, should not be interfered with in revision. In Bankey Lai v. Emperor A I R 1942 Oudh 462, a Single Bench judg ment, the view taken was that if the very start of the trial is bad for misjoinder and the proceedings are void, it would not be correct to say that there would be no necessity for setting aside the conviction if no injustice had been actually done. I am in respectful agreement with this view. It seems to me that in the cases cited on behalf of the Crown, the trial had not been vitiated ab initio, but an illegality had crept in, at a later stage during the trial. They were clearly cases where the provisions of section 342, Criminal Procedure Code, had been disregarded except for Allah Dya's case which concerned a joint trial of opposing factions charged with rioting and which was decided on its peculiar facts. The cases, therefore, cited in support of non‑interference in revision are really dis tinguishable from the present case. If I might say so, however, with the utmost respect, the proposition laid down in these authorities has been too broadly stated, if it is implied that the exercise of revisional jurisdic tion would be unjustified unless the accused is shown to have been prejudiced in all cases. It seems to me that if, as in the present case, the trial is vitiated by, non‑compliance with the provisions of the Criminal Procedure Code as regards the mode of trial, the Court must necessarily interfere, even sitting as a revisional Court. Revisional jurisdiction under section 439, Criminal Procedure Code, is undoubtedly discretionary in its nature, but that discretion has to be exercised on judicial principles. If there has been no trial in the eye of law, I consider that the Court must necessarily step in to right the wrong and quash the conviction and sentence recorded as a result of such a trial, irrespective of the question of prejudice to the accus ed. In my humble judgment, the question of prejudice would be more pertinent to a case of irregularity than to cases of this kind. If the case is of a trivial nature, or the harassment caused to the accused by the illegal trial is deemed sufficient punishment for him in the circumstances of that case, no retrial need be ordered but in other cases, a retrial would be necessary. I am, therefore, disposed to accept the contention raised by the learn ed counsel for the petitioner. I hereby set aside the conviction and the sentence of Siraj Din, petitioner. Now that I am seized of this case on the revision side, I do not see any reason why I should not interfere with the convictions and sentences of the other convicts in this case. I hereby set aside their convictions and sentences as well. The question that arises is as to whether a retrial should be ordered. in the circumstances of this case. The evidence on the file shows that there had been repeated thefts of manhole covers belonging to the Corporation in the recent past. Manhole covers are an expensive item. I do not, wish to create an impression that people, who either steal or receive stolen property belonging to a public body like Corporation, can do so with impunity. The case seems to me to be of some importance in Consequence and in the interest of justice there should be a retrial. I, therefore, direct that Siraj Din. Ismail and Mustafa should be retried, but there will be no question of retrial of Barkat who has already been acquitted. The deci sion will be communicated to the counsel. Pending trial, the convicts will be all released on bail to the satisfaction of the District Magistrate. A. H. Retrial ordered.