In re: Vankayalapati Gopalarao and another

Chandra Reddy, J.—The two petitioners were accused in C. C. 84/54 on the file of the Additional First Class Magistrate, Gannavaram at Vijayawada. They were charged for offences under Ss. 304-A and 279 I. P. C. read with S. 116, Motor Vehicles Act. In addition, accused 2 was charged for an offence under S. 114, Motor Vehicles Act in that he drove a heavy vehicle with a licence to drive only a light vehicle. Both of them were convicted of all the offences with which they were charged.

They were sentenced to 6 months and 2 months rigorous imprisonment on each of the two counts. Petitioner 2 was further sentenced to one month''s rigorous imprisonment under S. 114, Motor Vehicles Act. All the sentences were directed to run concurrently. On appeal, the Sessions Judge confirmed the convictions and sentences and it is against that judgment the present revision has been filed.

The prosecution case on which the charges have been framed may be shortly stated:

Accused 1 is the driver of the lorry MDK 1870 and accused 2 that of HYT 334. On 20-3- 54, they were engaged by P.W. 8 to transport rice bags from Eluru to his village. The two lorries left Eluru at about 6 P.M. and proceeded to Bezawada, lorry MDK. 1870 going ahead of HYT. 334. They were driving their lorries on the road in a rash and negligent manner. And at about 9 P.M.. when they were on the Grand Trunk Road between miles Nos. 277/4 and 277/5 accused 1 dashed his lorry against a double bullock cart, belonging to P.W. 1 going to Vijayawada and killed a cow tied to the yoke while trying to overtake the cart.

The second lorry struck against, the first one as a result of which the latter hit another double bullock cart driven by one Mallampalli Raghavalu going in the opposite direction. Consequent upon this collision the cart turned topsy-turvy and the driver fell on the road and received injuries which resulted in his death, at about 4-30 P.M. The bull yoked to that cart also was injured. The accused did not stop the lorries but the attempt of the two accused to run away was thwarted by the Railway gate being closed.

P.W. 1 gave a report to the village Munsiff P.W. 11, who in his turn sent it to the Police Station the next morning. Accused 1 also appeared at the Police Station and gave a report relating to the incident. The accused denied that they drove the lorries in question and that they were in any way responsible either for the death of Raghavalu or the cow.

When this Revision came on for hearing before the learned Chief Justice an objection was taken on behalf of the petitioners that the trial was vitiated by misjoinder of charges, contending that the two accused could not be charged and tried together on the various charges. The learned Chief Justice thought that the case should be disposed of by a Bench in view of the importance of the matter raised before him.

Since the objections here relate to the misjoinder of charges, we have to refer to the charges framed against the petitioners.

I hereby charge you. Vankayalapati Gopalarao (A-1); Kanyadhara Venkayya (A-2) as follows:

First: That you on or about 20-3-1954 at Nidamanur Ry. gate on the Trunk Road caused the death of Mallampalli Raghavalu by doing a rash or negligent act not amounting to homicide to wit, by driving your lorries rashly or negligently and thereby committed an offence punishable under S. 304-A, Indian Penal Code and within my cognizance;

Secondly: That you on or about the same day at the same time and place were driving your lorries MDK. 1870 and HYT. 334 on the public road in a rash and negligent manner liable to cause hurt and thereby committed an offence punishable under S. 279, Indian Penal Code read with S. 116 of the Motor Vehicles Act and within my cognizance; and I hereby direct that you be tried before me on the said charges:

I hereby charge you Kandhayara Venkayya (A-2) as follows:

That you on or about 20-3-1954 at Nidamanur Ry. Gate on the Trunk Road were found driving a heavy transport vehicle which you were not qualified to drive and thereby committed an offence punishable under S. 114, Motor Vehicles Act.

The rule as laid down in S. 233 in respect of the joinder of charges is that for every distinct offence of which any person is accused there should be a separate charge and each charge should be tried separately. Certain exceptions to this rule are created by Ss. 234 to 239. In order to avoid a complaint of misjoinder of charges the accused must fall within any of the exceptions laid down in these sections and it is for the prosecution to establish strictly that the joinder is permissible under either of the sections.

The relevant provision is S. 239 which sets out which persons may he charged or tried together. It consists of seven clauses (a) to (g), the appropriate clauses being (a) which says "Persons accused of same offence in the course of the same transaction" and cl. (d) "persons accused of different offences but in the course of the same transaction".

The contention of Mr. Sayee appearing for the petitioners is that the present case is not saved by either of those two clauses and that in any event since the prosecution seeks to bring into play both cls. (a) and (d) the trial is not in accordance with law. On the first head, it is urged by him that the two incidents are separate and distinct and further the acts of rash and negligent driving attributed to both the petitioners could not be said to form one transaction within the meaning of cl. (a) of S. 239.

It is argued by him that even in respect of the collision which led to the death of Raghavalu the petitioners could not be tried together. This is based on two rulings of the Saurashtra and Travancore-Cochin High Courts - ''Umar Bin v. The State'', AIR 1954 Sau 15 (A), and ''Edward Top v. The State'', AIR 1954 Trav. C 4 (B).

In the first case two motor buses running from opposite directions collided resulting in the death of one passenger and grievous hurt to another. The drivers of both the buses were tried together for offences under Ss. 304-A, 338 and 279, I. P. C., and S. 116, Motor Vehicles Act. Both the drivers were convicted in the trial court which was confirmed on appeal by the Sessions Judge.

When the matter came up before the High Court in Revision, a Bench of that Court observed that the joint trial of the two petitioners was not permissible under S. 239 (d), Cr. P. C. Even in respect of offences under Ss. 304-A and 338, I. P. C. as they could not be said to have been committed in the course of the same transaction and that the collision could not be regarded as the same transaction as it was only the result of the rash and negligent driving of the two drivers.

In the opinion of the learned Judges, to constitute the same transaction, there should be unity or oneness of purpose and that as there was nothing like an association between the two drivers or commonness of purpose they could not be charged and tried, together in one case. But the learned Judges refrained from expressing any final opinion in the matter and rested their judgment on another ground, namely, that offences of rash and negligent driving punishable under S. 279, I. P. C. and S. 116, Motor Vehicles Act said to have been committed by each of the drivers were distinct and separate ones and therefore could not be said to have been committed in the course of the same transaction. The ruling in the second case cited above is to the same effect, the facts of the case being similar to those in the first one.

On the question whether a collision of this sort could be said to have arisen out of the same transaction, or not, the view expressed by the Madras High Court in ''Balliah v. Emperor'', 1931 Mad WN 506 (C) is that it is one transaction and that the two drivers responsible for it could be tried together without contravening the relevant provisions of the Code. It was stated there that in order to form the "same transaction" it was not necessary that the two persons must be engaged in a similar or identical purpose.

It is pointed out that the community of purpose is nut the sole test though that might be a good one. Mr. Sayee argued that the decision in 1931 Mad WN 556 (C) is not correct and requires reconsideration and called in aid a judgment of one of us reported in ''Bodasingiramulu v. State of Andhra'', 1955 Andhra WR 288 (D) to support the contentions of his.

We do not think that that case is of any help to him. What was ruled in that case was that when two incidents that took place at different places and at different times are sought to be connected as forming one transaction it should be established that there was community of purpose and continuity of action. The dictum in that case cannot govern a case of collision between two buses. We are in agreement with the opinion expressed by the Bench in 1931 Mad WN 556 (C). But that does not dispose of the matter here.

In addition to the charge under S. 304-A both the accused are charged for an offence under S. 279. I. P. C. read with S. 116, Madras Motor Vehicles Act, S. 279 I.P.C. makes rash and negligent driving and riding in a public way endangering human life or to be likely to cause hurt or injury to any person punishable. Each individual driving the vehicle in such a way is liable to be punished irrespective of whether it ends in collision or not.

So, such a rash and negligent act by one driver is independent of the rash and negligent driving of the other driver. It cannot, therefore, be said that these two acts constitute the same transaction within the meaning of S. 239 (a), Cr. P. C. The trial of the two accused together in one case is, therefore, illegal. This view of ours is in conformity with that taken by the two Benches in AIR, 1954 Sau 15 (A) and AIR 1954 Trav-Co 4 (B).

There is another reason why the joint trial of the two accused contravenes the law relating to joinder of charges. The two petitioners are tried together not only in respect of same offences committed by them in the course of the same transaction but in respect of different offences committed by the two accused in the course of the same transaction. Accused 2 is also charged with an offence under S. 114, Motor Vehicles Act.

We feel that the clubbing of cls (a) and (d) of S. 239 is not warranted by the language of the Section. Each of the clauses in S. 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.

These clauses are mutually exclusive and they cannot be simultaneously applied and to construe them as supplementing each other would be enlarging the scope of the exceptions. Each clause is an exception to the general rule enacted in S. 233, Cr. P. C. If such a combination is permissible, all persons accused of offences described in cls. (a) to (g) can be tried together in one case which certainly involves a bewildering multiplicity of charges and which would obviously set at naught the salutary principle contained in S. 233.

We are fortified in our opinion by decided cases. In T.B. Mukerji Vs. The State, this question was elaborately discussed and Desai and Asthna JJ. decided that the different clauses of S. 239 are mutually exclusive find recourse cannot be had to two or more of them for the purpose of trying jointly more than one accused. See also ''Srirangachariar v. Emperor'', AIR 1934 Mad 073 (F), and D.K. Chandra Vs. The State,

There is also the further argument that the 1st and 2nd incidents are disjoined cues and are not in any way connected and both the incidents cannot be regarded as having occurred in one transaction and that petitioner 2 cannot be said to have culpability in regard to the first incident and the joint trial of the two accused in respect of these incidents has considerably prejudiced them.

There is some force in this submission also. We feel that the joint trial of these two petitioners for various offences charged is vitiated by misjoinder of chargers and has to be set aside. Each of the two petitioners will be tried separately in respect of offences said to have been committed by him.

The petition is allowed and there will be re-trial as indicated above.