P L D 1964 (W (PLP)

6. The respondent opposed the application, on the ground that there was no misjoinder of charges in Case No. 68/2 or misjoinder of charges and accused in the other two cases, and that at any rate, even if there has been misjoinder of charges and accused in case No. 69/2, the proceedings were not vitiated but were curable under section 537 Cc. P. C., in that no prejudice had been occasioned to the respondent, and that the provisions against the misjoinder of charges and multifarious-ness were intended for the benefit of the accused and since no prejudice what soever has resulted in the case, the proceedings are not vitiated.

7. The learned Special Judge in separate orders dated 16th December 1963, disallowed ail the three applications. In case Pro. 68/2 the learned Special Judge thought that there was no misjoinder of charges, in that the accused was to meet charges for three offences under section 161 P. P. aid not six. In the other two cases the learned Special Judge thought that under section 239 of the Cr. P. C. the respondent and the abettors could be tried together and that there had been no misjoinder of charges or accused.

8. The case was fully argued by Sh. Ata Ullah Sajjad, Additional Advocate‑General and Hakim Abdur Rehman, learned counsel for the respondent. The learned A. A.‑G. in Revision Petition No. 92 of 1964, arising out of Case No. 67/2 abandoned the line of argument adopted before the learned Special Judge that contrary to the provisions of section 234, Cr. P. C. the proceedings were vitiated, in that six charges instead of four had been clubbed together, and adopted a new line of attack, namely, that charge No. 2 comprised of two distinct offences of bribery, (1) in regard to the payment of the sum of Rs. 500 for bailing out Mukhtiar Ahmad and (2) a sum of Rs. 1,000 paid later on as deposed to by Mukhtiar Ahmad (P. W. 9) in the case for the acquittal. In regard to the other two cases, the principal challenge against the impugned order was that there had been misjoinder of charges and accused, in that the exceptions per mitting joint trial are mutually exclusive and in the same trial charges cannot be added which are exclusive to one of the several accused. It was, therefore, argued that in Case No. 68/2 Sanaullah was a co‑accused with the respondent only in regard to one out of three charges. In regard to Case No. 69/2 it was complained that out of the three charges Abdur Rashid accused was co- accused as an abettor in two cases only.

9. Hakim Abdur Rehman learned counsel for the respondent in regard to Case No. 67/2 argued that the respondent was called upon to answer three charges only and as such the trial did not offend the provisions of section 234 Cr. P. C., which permitted the trial of three offences "committed within the space of twelve months from the first to the last of such offences", and that the learned Additional Advocate‑General was trying to make out a new case by suggesting that in fact charge No. 2, comprise of two separate offences, (1) pertaining to the receipts of the sum of Rs. 500 as a bribe for bailing out Mukhtiar Ahmad and (2) the receipt of Rs. 1,000 later on for acquittal of the accused as deposed to by Mukhtiar Ahmad. It was, therefore, argued that what was to be looked at was the charges and not the evidence. With regard to the other two cases, the learned counsel argued that sections 234, 235, 236 and 239 are exceptions to section 233 Cr. P. C. and all these exceptions were not mutually exclusive but were complimentary, and any irregularity in non‑observance of the joinder of charges or the accused was mere an irregularity and this was curable under section 537 Cr. P. C. unless it has occasioned prejudice to the accused and that in the instant case there has been no prejudice. It was next argued that since the prosecution had moved the Court for splitting up of the charges very late in the day when the whole prosecution case was almost closed and when the respondent had already been under suspen sion for a long period the prosecution wanted the respondent to be put to the jeopardy and the expenses of another trial. Lastly it was argued that since the evidence has been almost closed, I should refuse to order re‑trial of the case and leave the matter to the discretion of the trial Magistrate to decide the case according to law, notwithstanding any contravention of the provisions contained in the Criminal Procedure Code pertaining to misjoinder of charges and the accused.

10. Sections 233 to 240 of the Cr. P. C. deal with the joinder of charges and they must be read together and not in isolation with a view to explaining the implication. The various provisions of the Code contemplate that there shall be a change for every distinct offence and that it shall be formulated with precision; that the precise charge framed is to be tried, and tried separately, Out of these sections, sections 233, 234 and 239 fare very material. Section 233 is in the following terms :‑ "For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239." Section 234, subsection (1), which is material to the discussion In hand, is in the following terms :‑ "234(1) when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three." Clause (b) of section 239 Cr. P. C. alone is material to the dis cussion in the present case, and that clause is in the following terms :‑ "

239. The following persons may be charged and tried together, namely, (b) person accused of an offence and persons accused of abetment, or of an attempt to commit such offence." The object underlying section 233 is to save the accused from being embarrassed in his defence if distinct offences are lumped together in one charge or in separate charges and are tried together but the Legislature has engrafted certain exceptions upon this rule contained in sections 234, 235 and

239. The underlying idea is that if too many charges are grouped together against an accused person, he might be handicapped or embarrassed in conducting his defence. The other substantial reason against joinder of charges or accused is to prevent the mind of the Court being prejudiced against the accused person if he was tried in one trial upon the different charges resting upon different evidence as at times it may be difficult for the Court trying him on one of the charges not to allow In mind being influenced by the evidence against him in other charges. In Queen‑Empress v. Mahomed Humayoon Shah (21 W R 72), Jackson, J. observed :‑ "I take to be first a notice to the prisoner of the matter whereof he is accused, and it must convey to him with sufficient clearness and certainty that which the prosecution intends to prove against him and of which he will have to clear himself, second, it is an information to the Court which is to try the accused, of the matters to which evidence is to be directed." Section 234 Cr. P. C. is the first exception to the general rule of one trial for each distinct offence. The principle underlying this section is that the offences of the same kind in criminal Court within a space of short period, namely, twelve months from the first to the last of such offences, may be tried together. This section lays down three limitations. They are, (1) that the offences must be of the same kind, (2) that they must have been com mitted within the space of one year, and (3) that more titan, three offence should not be joined in the same trial. It is also important to observe here that the directions in regard to joinder of three charges stated under section 234 are not mandatory in the sense that it is not obligatory on the Magistrate not to try the offences separately, but it is entirely in the discretion of the, Magistrate whether or not to resort to section

234. The section is merely enabling section and does not in any way deprive the Court of ordering a separate trial. In other words, it is not obligatory on the Court to have joint trial of three offences committed within the period of 12 months. It is also important to notice that this section governs the case where there is only one accused. The case of several persons being accused of more offences than one of the same kind committed within the space of twelve months is dealt with in section 239 (c).

11. Section 239 Or. P. C. Is the last of the exceptions to the rule laid down in section 233 and expressly mentioned as such in that section. This is the only section which deals with the joint trial of more than one person and the preceding five sections are intended to cover the case of one accused person but more than one charge. It will be manifest from reading the language of this section that it lays down the seven contin gencies mentioned in clauses (a) to (g) in which persons may be charged and tried together. Clause (a) is to the effect that "persons accused of the same offence committed in the course of the same transaction can be tried together." Clause (b) is to the effect that "persons accused of an offence and persons accused of its abetment or attempt to commit it can be tried together." Clause (e) is to the effect that persons accused of more than one offence of the same kind within the meaning of section 234 committed by them jointly within the period of twelve months can be tried together. This provision is analogous to that of section 234, which section it would be remembered deals with only one accused. Under clause (d) persons accused of different offences committed in the course of the same transaction can be tried together. This is analogous to section 235(1). Clause (e) deals with the joint trial. Clause (f) deals with the joint trial of receivers of property stolen through one theft. Finally, clause (g) deals with counterfeiters of coins.

12. This brings me to the one of the central questions in the case, namely, whether the exceptions contained in sections 234, 235, 236 and 239 are supplementary to each other or mutually exclusive. Though there is no divergent of views on this point, but the consensus of the opinion is in favour of the view that each of the four sections, namely, sections 234, 235, 236 and 239 can individually be relied upon as justifying a joinder of charges in matter of trials, but use cannot be made of two or more of these four sections together to justify a joinder. It is, therefore, not possible to combine the provisions of two or more sections or the different sub‑clauses of section 239 in any one case, or to justify a trial of several persons partly by applying the provisions of one clause and partly by applying the provisions of another clause or other clauses, and a joint trial is permissible only if it is permitted by any one of these sections. Reference may be made to the decision in Sri Rain Varma v. State ((1956) All. 466). I may also quote the observation of Chagla, C. J., in Dt. K. Chandra v. State ((1952) Bom. 177 at 179) his Lordship observed: "It is not very helpful to consider whether the exceptions contained in sections 234, 235 and 236 are mutually exclusive. It would be better to lay down that if the prosecution wishes to justify a trial in which charges are joined, it is for the prosecution strictly to establish that the joinder is permissible under either section 234, 235 or

236. It is a well‑known canon of construction that exceptions must be strictly construed, and unless the prosecution satisfies the Court that the exception has been strictly complied with the joinder of charges in a trial must be held to be contrary law. It maybe possible in a conceivable case for the prosecution to establish that a case falls under more than one exception. But if it falls under more than one exception it must so fall that it must not infringe the provisions of any of the three sections." Again, while discussing the case of Bal Gangadhar Tilak (10 Bom. L R 973), His Lordship, observed :‑ "We do not dispute the correctness of the proposition laid down by the learned Chief Justice that more than one section mentioned in section 233 can be made use of in co‑operation, but the co‑operation must not lead to the contravention of any of the sections mentioned in section 233." The same view was taken in the decision in re: Vankayalapati Gopalarao and another (A I R 1956 Andhra 21). It was held in that case that "the clubbing of clauses (a) and (b) of section 239 is not warranted by the language of the section. Each of the clauses in section 239 mentions a group of persons who are connected with one another in some way or other as mentioned in that clause and it is only persons whose connection is established with any particular group that could be tried in one case. A joint trial of persons included in more than one group, in our opinion, is not justifiable." To the same effect is the decision of the Full Bench of the Saurashtra High Court in Shah Himatlal Amulkh and another v. The State (A I R 1955 Saur. 77), where it was observed :‑ "In order to justify a joinder of charges it is not necessary that the case should satisfy the conditions of all sections men tioned in section

233. A joinder of charges can be justified if the conditions laid down by one or the other sections are completely satisfied but not otherwise, though if the joinder is justified by one of them, it does not matter if it goes beyond the provisions of other sections. It was further held :‑ "It would be enlarging the scope of sections mentioned in section 233 to hold that a joint trial would be permissible not only in cases where the joinder is justified by these sections singly but also in cases which partly satisfy the conditions of one section and partly of another." I may also profitably quote the terse observation of Kayani, J. as his Lordship then was, in Noor Din v. Crown (P L D 1952 Lah. 185), when at page 199, while addressing himself to the very same question, he observed :‑ "But there can be another meaning, and an equally effective meaning, that only such persons may be tried together as fulfil the conditions laid down in section 239, and that no other charge can be joined in the same trial. And considering that section 239 is an exception to the general rule enunciated in section 233 the rule of a separate charge and a separate trial for every distinct offence it would appear that the second meaning is preferable. For where there is a rule and an exception thereto, then unless a case falls strictly into the language of the exception, it should attract the rule. It is of interest to note that section 239 in one of its own clauses‑clause (c) provides for the joint trial of several persons and several offences where such offences have been committed jointly. It is again of interest to remember that clause (c) was added to the Code only in 1923. It may be assumed that the addition was made because it was felt that in its absence the trial of several persons for several offences committed by them jointly would not be legal. But if such a trial was illegal, how could the trial of such persons be legal for offences committed by them, or one of them, separately ?

13. This brings me to the question whether misjoinder of the charges or the accused is an illegality, or mere irregularity and is curable provided no, prejudice has been occasioned to the accused. This question stands concluded by the decisions of the Privy Council and. the Supreme Court of Pakistan, wherein it has been held that the express provision of law as to the mode of trial was not a mere irregularity which could be remedied by section 537, Criminal Procedure Code. The root authority, if I may use that expression, is the decision of the Privy Council in Subrahmania Ayyar v. King Emperor ((1902) I L R 25 Mad. 61). The judicial Committee observed "that the disregard 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. Such a phrase as irregularity' is not appropriate to the illegality' of trying an accused person for more different offences at the same time, and those offences‑being spread over a longer period than by law could have been joined together in one indictment."

14. In Muhammad Mosaddar Hoque and Muhammad Abdul Rouf v. The State (P L D 1958 S C (Pak.) 131), Shahabuddin, J. delivering the judgment for the Supreme Court on the question of misjoinder of the accused, summed up the discussion thus:-- "In the circumstances the joint trial of the appellants was illegal. No question as to whether prejudice was caused or not need be considered as illegality has resulted from adopting a mode of trial prohibited by the Code and it cannot therefore be cured under section 537, Criminal P. C.

15. I would wind up the examination of the authorities on this point by quoting the observation of the Supreme Court in the recent decision in Noor Ahmad v. The State (P L D 1964 S C 120). Hamoodur Rahman, J., summing up the discussion in regard to the question of prejudice to the accused in a joint trial, observed :‑ "Furthermore although it has been held by this Court in the case just referred to that where a joint trial has been wrongly held no question as to whether a prejudice has thereby been caused or not need be considered , or, it is an illegality resulting from the adoption of a mode of trial prohibited by the Code of Criminal Procedure, yet we are satisfied that in the present case the adoption of such a mode of trial has also resulted in serious prejudice to the appellant,."

16. Having laid down the principles as to joinder of charges and joint trial of the accused, I propose to deal separately with each case. As regards Case No. 67/2, I am clearly of the view that it does not offend the provisions of section 234 Cr. P. C., in that, as already indicated, in the accusations dated 29‑4‑63, the respon dent was called upon to meet three charges listed therein. Before the learned Special Judge it was suggested that the trial was rendered illegal as a result of combination of charges under section 161 P. P. C and section 5(2) of the Prevention of Corrup tion Act II of 1947, with the result that there were in all six charges. This line of argument, as already indicated, was abandoned, and a new line of attack was adopted by the learned A. A: G. that in fact charge No. 2 comprised of two separate and distinct offences (1) in regard to payment of Rs. 500 and (2) the payment of Rs. 1,000 later on at the time of acquittal. From the reading of accusation No. 2 it is manifestly clear that it was one offence in which the respondent had allegedly "demanded and accepted a total amount of Rs. 1,500 as bribe from Mukhtar Ahmad", for releasing 13 accused persons on bail and subsequently acquitting them. The prosecution cannot therefore be permitted to turn round and say that in fact two separate offences were constituted simply because the sum of Rs. 500 had been allegedly paid at the time of releasing the accused on bail and the remaining amount at the time of their acquittal. It follows from the above discussion that the trial in that case was quite in order.

17. As regards Cases Nos. 68/2 and 69/2, there has clearly been misjoinder of charges and accused, in that in Case No. 68/2 Sanaullah is a co‑accused as an abettor in the third accusation pertaining to demand and acceptance of Rs. 1,

300. Similarly in Case No. 69/2 Abdur Rashid is a co‑accused as an abettor with the respondent in two of the three accusations, and as such there is misjoinder of charges and accused. It is important to observe here that the learned Additional Advocate‑General while arguing the case prayed for splitting up to three charges into two separate trials, (1) in which the respondent is to be tried alone, and (2) the remaining two accusations in which the respon dent is a co‑accused with Abdur Rashid as an abettor. On a careful study of the relevant provisions of the Criminal Procedure Code dealing with joinder of charges and accused, namely, sections 233 to 239, I am clearly of the view that section 239(b) does not permit the trial of a principal offender and a person accuse of abetment, unless the trial relates to only one offence and the misjoinder of charges persons in a case of this type is not a mere irregularity but illegality which wholly vitiates the trial. I am fortified in this view by the decision in Bakhshish Singh Dhaliwal v. The State (A I R 1959 Pb. 448) G. D. Khosla Ag. C. J., after review of the case‑law on the subject, at page 453 lucidly summed up the discussion thus:‑ "We, therefore, see that there is not a single case in which it has been held that the trial of a principal offender along with that of an abettor in relation to more than one offence is an illegality which is curable by the provisions of section

537. Criminal Procedure Code. Section 239(6) does not permit the trial of a principal offender and a person accused of abetment unless the trial relates to only one offence. The misjoinder of charges and persons in a case of this type is not a mere irre gularity; it is an illegality which vitiates the very trial." It, therefore, follows that there have been misjoinder of charged and accused in Cases Nos. 68/2 and 69/2, and as such the proceedings have been vitiated. It is indeed highly regrettable that the learned Magistrate at the time of drawing up of the accusa tions should not have received proper assistance from the Public Prosecutor or the officer who was incharge of the prosecution in drawing up proper charges so as to avoid misjoinder of charges and accused. It is also unfortunate that at a very late stage when the prosecution evidence had almost been concluded it dawned on the Public Prosecutor that there had been misjoinder of charges and the accused. It is indeed extraordinary that on behalf of the accused it should be argued that there had been no violation of the mandatory provisions of the Criminal Procedure Code relating to misjoinder of charges and accused. I think the learned counsel for the respondent was driven to this desperate situation in his anxiety to save his client from the jeopardy of another trial. I am very much alive to the unfortunate repercus sions which are likely to ensue in splitting up the charges and" ordering separate trials to avoid misjoinder of charges and the accused. For one thing, this would mean that the respondent would remain suspended till the end of the trials when he is eventually acquitted, for the other, he will have to face the ordeal of several trials and the expenses of defending himself, but unfor tunately this has been rendered inevitable, in that the proceedings (in the two cases against him) are wholly vitiated. All that can be done in such an unfortunate situation is that direction would be given to the Special Judge to dispose of the cases expeditiously.

18. Before I take leave of the case, I would like to make certain observations in regard to the advisability of a joint trial In respect of a large number of counts. This practice is to be deprecated, even though the law may not prohibit it, for two‑fold reason, (1) that the provision relating to misjoinder of charges and accused is unfortunately very sparsely understood, and (2) that this would eliminate the chances of any trial being eventually declared vitiated for misjoinder of charges or accused as in the instant case. I would, therefore, suggest that in such cases the Public Prosecutor should be asked to select what he considers to be the best case from his point of view and try that case first and leave the other charges to be tried, if necessary, later on after the result of the first trial is known. This practice is in accordance with commonsense and does justice to the accused and does not result in confusion, as held in, in re Balam Pateyya and others (A I R 1941 Mad. 339). I would wind up the discussion with the suggestion that the Pakistan Government might consider the advisability of amendment of section 537, Cr. P. C. sub clause (b), as has been done in India, so that the sub‑clause (b) should read :‑ "(b) of any error, omission or irregularity in the charge including any misjoinder of charges, or" The effect of this amendment would be that no finding, sentence or order passed by a competent Court shall be reversed or altered on account of any error, omission or irregularity in the charge including any misjoinder of charges unless it has in fact occasioned a failure of justice.

19. As a result of the foregoing discussion, I accept revision Petitions Nos. 91 and 90 of 1964 and reject revision petition No. 92, and direct that in Case No. 69/2 in which Abdur Rashid is co‑accused, the three accusations should be split up into two separate trials and in Case No. 69/2 in which Sanaullah is co‑accused with the respondent the case to be split up into two trials, in one trial the respondent and Sanaullah be tried and in the other case the respondent be tried on the remaining two accusations. I further direct that the Special Judge should bear the cases from clay to day and dispose them of within three months. K. B. A. Order accordingly.