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Judgment
K.B. Panda, J.—These three appeals arise out of a common judgment dated 12-4-1973 of the Assistant Sessions Judge, Jeypore passed in S.C. Nos. 34, 35 and 36 of 1972 convicting the Appellants under the Indian Penal Code, the Indian Arms Act (54 of 1919) and the Indian Explosive Substances Act (Act 6 of 1908). Each of the nineteen Appellants in Criminal Appeal No. 92/73 (S.C. No. 36/72.) has been convicted under Sections 399 and 120-B of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 50/ - in default to undergo rigorous imprisonment for a period of 4 months on each count. The fifteen Appellants in Criminal Appeal No. 91 of 1973 (S.C. 35/72) have further been convicted u/s 27 of the Indian Arms Act and under Sections 4(b) and 5 of the Indian Explosive Substances Act and sentenced to undergo rigorous imprisonment for two years each on each count. The sole Appellant Pallasi Bujjayya (Accused No. 3) in Criminal Appeal No. 96 of 1973 (S.C. No. 34/72) has been again convicted under Sections 4(b) and 5 of the Indian Explosive Substances Act and sentenced to undergo rigorous imprisonment for 2 years. The sentences are to run concurrently.
It may be stated here that the accused Appellants being common they will be described herein as accused as per serials given in Sessions Case No. 36 of 1972.
These three appeals were heard analogously and they will be governed by this common judgment.
The three sessions cases were clubbed together by the learned lower Court by his order dated 28-9-1972 which is as follows:
A.P.P. is present. Heard in the matter of clubbing of other sessions cases 68/72 and 69/72 as (i. e. S.C. 35/72, and 36/72) the offences are the same and the date of occurrence is within one month and with one (within) one P.S. and subdivision. Hence, there is no bar to club the other cases to this case. A.P.P. has no objection if the cases will be clubbed and joint trial may be taken. Hence the case is clubbed along
with S.C. Nos. 35/72 and 36/72.
xx xx xx
Thereafter one set of evidence was taken and in all 43 witnesses were examined on the side of the prosecution. The defence that was not represented by any lawyer examined none.
In substance the prosecution case was that one Santharaju (not an accused) along with S. Radhakrishna Murty (Accused No. 15) and some other Naxalite leaders came from Andhra Pradesh to village Alurkota within the State of Orissa. They arranged meetings at 9 different places on different dates and it is alleged that they exherted the people to join their party. Accordingly, these Appellants associated themselves with these Naxalites whose object was to commit docoity in the house of the rich.
It is alleged that at first, a meeting was arranged at Alurkota by the Naxalites coming over from Andhra Pradesh. They collected some followers there. The other places of meeting whose dates are not given are saragati, Gillamadugu, Guraluru, Busipaka, Chintagunalu, Nagulur, Kurmanuru and Tiyanimamidi. These places lie in the hilly tracts of Koraput very sparsely populated and inhabited by Adivasis. According to the prosecution case, all the 19 Appellants did not become converts in one meeting but in different meetings and thus their party grew. The Andhra Naxalite leaders were initially having two wooden boxes, one of which is marked as M.O. III and each of them was having a bag, Crossing the river Sileru they first went to the house of the accused Palasi Bujjayya (A. 3) who entertained them. After that they went to the farm house of Majhi Pandeya (P.W.3) and held a meeting there. It is alleged that Appellant No. 3 (A. 3) invited PWs. 1 and 2 besides other villagers to attend the meeting. In that meeting, accused No. 15 (S. Radha Krishna Murty, Santharaju and others who came from Andhra Pradesh were present. The meeting was attended to by PWs. 1 and 2 and Siriguru Singayya and Siriguru Bijjayya (A. 7 and 2 respectively). The meeting was addressed by Santharaju. After the meeting was over, it is said that A. 2, A. 7 and A. 3 joined the party. Similar meetings were held at different places already named, wherein Santha Raju was taking a leading role. He was armed with revolver (M.O. I) and a bag containing country made bombs. The substance of his speech was that a Government of the poor people should be established after over-throwing the present Government; that the rich Sahukars should be robbed and if necessary may be killed and their riches and lands distributed amongst the poor. In case the Police would intervene they would be destroyed with bombs. With the money so obtained, Communist schools should be established in which children of the poor should be given free education, wells would be dug, roads laid and the like. He threatened the persons who attended the meeting that unless they joined hands with him, they would be killed with the revolver or smashed with the bombs he was carrying in his bag.
According to the prosecution, inspite of this threat the prosecution witnesses did not join the party though the Appellants did.
This movement was closely watched by both Orissa and Andhra Pradesh State Government and the Police had been alerted. A joint raid was made., In that from the house of accused Pallasi Bujjayya (A. 3) of village Alurkota, the Police recovered some Naxalite literature (Exts. 30 series, 31 series, 32 series and Exts. 33 to 38) besides some other books. It also recovered some lead pieces, iron cuttings, hammer etc.. Again in a search of the house of Marsi Balleyya at Chintagunalu, (A. 1) police recovered revolvers (M. Os. I and In, country bombs, bows and arrows, explosive materials besides some literature.
On these allegations, the 19 persons were sent up for trial under different cases as already indicated. The learned Assistant Sessions Judge at one stage thought fit that the three sessions cases separately committed as against the 19. 15 and one accused person should be clubbed together (quoted above).
The plea of the accused persons barring S. Radha Krishna Murty (A. 15) was a flat denial of their complicity in the alleged conspiracy and other charges.
Accused-Appellant No. 15 filed a long written statement before the committing Court explaining the ideal for which he stood. In the Sessions Court, he admitted to have given it but added that he had given up that ideology for ever, because of the change of front of the movement. In short, his plea was that he denounced the present Government and the Courts of law and that he was an active member of the Communist Party of India (Marxist Leninist). His further case was that he was not concerned with any murder case committed in Andhra Pradesh and that he had been taken to the T.I. parade after being shown to the witnesses in this case. Before the Sessions Court he stated that he did not like to join any party. Accused Pallasi Sundarayya (A. 6) gave a written statement in Telugu denouncing the present system of Government and the Courts of law, though of course be deemed his complicity in the crimes alleged.
Accused 1 and 3 from whose houses the alleged explosives and arms were recovered also denied the allegations.
Mr. S. Misra (1), learned Counsel for the Appellants'' attacked the Judgment both on point of law as well as on fact. His main contentions are:
(a) Clubbing up of the three sessions cases by the learned lower Court is bad in law which has vitiated the trial.
(b) The charge u/s 120 B of the Indian Penal Code covers as many as 9 instances of alleged conspiracy which is hit by Section 233, Code of Criminal Procedure (old). It has led to multifariousness and confusion vitiating the trial which is incurable;
(c) Pallasi Bujjayya (A-3) has been twice convicted for the same offence both in Sessions Trial No. 34/72 and 35/72 which is unsustainable.
(d) There is no evidence justifying the charge u/s 120 B of the Indian Penal Code in as much as mere attending a meeting where the organisers gave a threat does not constitute conspiracy as contemplated u/s 120 A of the Indian Penal Code.
(e) The trial Court has misconducted itself by utilising the statements recorded u/s 162, Code of Criminal Procedure in a manner contrary to law;
(f) The witnesses were neighbours of most of the accused persons. So, no sanctity could be attached to their identification and so far as Krishna Murty (A. 15) is concerned, he had already been shown to the identifying witnesses before the T.I. parade was held and as such the evidence of T.I. parade is no avail.
(g) There was no function for prosecution under the Arms Act as also under Explosive Substances Act.
(h) Lastly, the case has been started to suppress the Naxalite movement wherein innocent Appellants have been victimised, tortured, their property looted by the Police and finally this case has been started as a face-saving device.
However, subsequently, he did not urge on the point of sanction under the Arms Act and the Explosive Substances Act.
The learned Additional Standing Counsel, appearing on behalf of the State conceded that so far as the T.I. parade is concerned, no doubt there is some evidence that A. 15 had been shown to some of the identifying witnesses, but all the same, the substantive evidence in Court is that he had been properly identified. Regarding the points of law, urged on behalf of the Appellants, his contention is that clubbing up of cases of the present nature is not contrary to law inasmuch as it comes under Sections 235 and 239, Code of Criminal Procedure (old) which is an Exception to Section 233, Criminal Procedure Code. In short, his contention is that there was no Illegality or irregularity In the proceeding. Both the sides on this point cited a series of decisions. In fact, the moot point for consideration is if the clubbing up of the three sessions cases as well as the charges framed in this case are meet and proper.
That there were 9 meetings at different places and on different dates wherein one Santha Raju threatened the people attending the meeting to join his party is not challenged. P.w. 1 has stated about the searches of Santha Raju thus:
He also said that, if we would not joint them in their Sangho, that is, Communist Party, he would either throw the bombs at us or kill us.
Almost in the same strain PWs. 2, 4, 5, 6, 7, 9, 14, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 have deposed in Court.
The charges framed against the accused are thus:
(1) In Sess. Case No. 34/72:
I, Shri M.V. Gangaraju, Asst. Sessions Judge, Jeypore hereby charge you Palasi Bujjayya son of Palasi Debayya as follows:
First that you on or about the 19th day of June, 1970 at Alurkota within Venkatapalem P.S. you were in possession of Explosive Substances, such as 18 country made bombs and other explosive materials as per seizure Est with intent to endanger human life and cause serious injury to the property in India or to enable other persons to do the same and thereby committed an offence punishable u/s ..}(b) of the Explosive Substances Act, 1905 within my cognizance.
Secondly - that you en or about the same time and place you were found in unlawful possession of explosive substances as mentioned above under the'' circumstances to give rise to reasonable suspicion that they were kept for unlawful purposes and thereby committed an offence punishable u/s 5 of the Explosive Substances Act, 1908 within my cognizance; And I hereby direct that you be tried by the said Court on the said charges...
(2) In Sess. Case No. 35/72:
I, xx xx xx hereby charge you (1) Marsi Balayya son of Marsi Mokayya, (2) Siriguru Bujayya son of S. Endeya, (3) Polasi Bujayya son of Polasi Gangayya, (4) Marsi Gangayya, (5) Pangi Balaswarrao, (6) Polasi Sundarayya, (7) Siruguru Singayya, (8) Jeeram Telnayya, (9) Papala Bujjayya, (10) Polasi Burayya, (11) Nain Lachayya, (12) Polasi Ramayya, (13) Margili Badayya, (14) Karla Bujjayya (15) S. Radhakrishna Murty, as follows:
First - That you, on or about the 20th June, 70 at about 4 A.M., you were found In unlawful possession of one revolver with four live cartridges one 12 bore revolver with three live cartridges, two knives with leather covers and bow and arrow along with arms, ammunitions and explosive materials while you were all putting up in the house of accused Marsi Balayya at Chintabunalu and they were kept with an intention to use them for unlawful purposes such as to kill and loot rich people of Sileur, Donkorai, Chitrakonda and thereby committed an offence punishable u/s 27 of the Indian Arms Act and within my cognizance.
Secondly - that you on or about the same day and time and place were found in unlawful'' possession of explosive materials such as 10 Bombs (country-made), a bag containing other explosive materials like Gun powder with intent by means thereof to endanger life and cause injury to the property and thereby committed an offence punishable u/s 4(b) of the Excessive Substances Act, 1908 and within my cognizance.
Thirdly - that you, on or about the same day, time and place by being in unlawful possession of explosive substances giving rise to reasonable suspicion that they were kept for unlawful purposes and thereby committed an offence punishable u/s 5 of Explosive, Substances Act, 1908.
And I hereby direct that you be tried by the said Court on the said charge u/s 27 Arms Act. 4(b) and 5 of Explosive Substances Act, 1908.
(3) In Sess. Case No. 36/72:
I, xx xx hereby charge you (1) S. Radhakrishna Murthy, (2) Marsi Gangayya, (3) Jecram Tellanayya, (4) Siriguru Singayya, (5) Siriguru Bujjaya, s/o Endayya, (6) Palasi Bujjayya, s/o Gangayya, (7) Palasi Bujjayya s/o Debayya, (8) Palasi Sundarayya, (9) Naini Balayya (10) Naini Lachayya, (11) Palasi Bujjayya, s/o P. Ramayya, (12) Marigili Endayya, (13) Palasi Burrayya, (14) Marsi Bahyya, son of M. Muttayya, (5) Pappala Bujjayya. s/o Balayya, (6) Pangi Balayya, (17) Pangi Baleswara Rao, (18) Palasi Ramayya, (19) Koole Bujjayya, s/o Balayya, as follows:
That you in between 8-6.1970 to 20-6-1970 in the village Alurkota, Naglur, Kurmanur, Gilmadegu Buchipaka, Chintagunnalu, Naglur, Goralur and neighbouring villages of Venkatapalam P.S., area held meetings from village to village conspiring to raise an armed revolution in order to kill the rich and to loot their properties by dacoity in Sileru, Dunkorai, Chitrakorda, Korukonda and other neighbouring areas amounting to offences punishable with death, imprisonment for life and R.I. for two years and, upwards and thereby committed an offence punishable u/s 120-B read with 399 of the Indian Penal Code, and within my cognizance and I hereby direct that you be tried by the said Court on the said charges.
From the above three charges in the three sessions cases, it is clear that in the third case, all the 19 Appellants were charged for having committed offences u/s 120-B read with Section 399, Indian Penal Code; in the second, 15 out of them u/s 27 of the Indian Arms Act and Sections 4(b) and 5 of the Indian Explosive Substances Act; and in the first only one, that is accused No. 3 u/s 4(b) of the Explosive Substances Act punishable u/s 5 of the said Act.
Evidently, A. 3 has been twice convicted under the Explosive Substances Act once in Sessions Case No. 35 of 1972 and again in Sessions Case No. 34 of 1972. There is no dispute that there had been only one search in the house of accused No. 3 on 19th June, 1970. Certain incriminating articles were said to have been recovered for which he has been charged in Sess. Case No. 34/72 and convicted. Again in Sess. Case No. 35/72, for unlawful possession of revolver on 20th of June, 70 which was a direct charge as against accused Nos. 1 and 14 others, accused No. 3 has been charged and convicted. In this context, the seizure lists are Exts 15, 15/1 and 15/2 appearing at pages 55-58 of the paper book. As it appears from the First Information Report (Mediator''s report or spy information) while A. 3 was running away at the sight of the Police he was caught hold of and interrogated. He gave out names of certain persons who had already fled and were alleged to be connected with Naxalite movement in the area. However, on a search of his house, 28 items of incriminating articles as per the seizure lists were found out. This forms the basis of G.R. Case No. 154 of 1970. The basis of G.R. Case No. 155 of 1970 is Ext. 17/1 (F.I.R.) dated 20-6-1970 and Ext. 17/2 appearing at pages 59-62 of the paper book. In this case, while a raid was conducted, as it appears, the adult members were not found and some youngsters and minors were interrogated and most of them were made accused in this case. For instance, Jeeram Tellanayya (A. 8) is 16 years; Palasi Burrayya (A. 10) is 13 years, Naini Lachhayya (A. 11) 12 years, Palasi Bujjayya son of Gangayya (A. 16'' is 15 years. When these youngster numbering 9 were interrogated, it is alleged that they explained how the Naxalite leaders had fled. Thereafter it is stated thus:
.... The house was searched in their presence and the following articles were recovered, which are claimed to have been their own.
Then a list of 10 articles said to be incriminating is given. Obviously it is not from the house of any particular individual.
Finally it is stated thus:
On this incriminating statement, the police arrested them seized the above articles in their presence which they have written and signed.
True, in the 342, Code of Criminal Procedure (old) examination the learned Assistant Sessions Judge has shown these accused persons as majors, but hardly that is credible. At the time of their arrest in the F.I.R., the Police estimated their age as already indicated. This aspect of the case only probabilises the defence theory that the Police in their anxiety to suppress the movement had in the absence of the adult members- who were really connected with the movement, did not hesitate to start a case against these youngsters. In this context, it may also be mentioned that the description given in the three appeals regarding the identity of the accused persons does not tally. For example, accused No. 10 Palasi Burraya in Crl. Appeal No. 91/73. has been described as son of Polasi Bullayya of Gurallur while in Criminal Appeal No. 92/73 he has been described as son of Polasi Enkayya of Gurathur. In the 342, Code of Criminal Procedure examination he has been shown as Polasi Venkanyya. The village in the latter two cases has been mentioned as Gurathur. Though the name is same yet the father is differently described and so too the village. There are also some such mistakes in respect of some of the other accused Appellants regarding the village and regarding their father''s name, which need not be tabulated.
Turning to the question of the propriety of clubbing up the three cases, the defence was quite emphatic as to how it was illegal while the prosecution imported the same with equal vehemence. In this context, on behalf of the Appellants, firstly the case relied on is a Full Bench decision of the Calcutta High Court Osman Mistry and Anr. v. Atul Krishna Ghosh and Anr. AIR 1949 Cal. 632. That was a case where two persons were convicted of an offence of theft by a First Class Magistrate. The first offence of theft was committed by 3 persons and six days after, a second offence was committed by these three persons along with three more persons. Two cases were separately started against them but the Magistrate subsequently amalgamated the cases and tried the accused Jointly for the two offences. In that connection, their Lordships held thus:
There is no provision in the Code of Criminal Procedure for amalgamating cases. The sections relating to the joinder of charges and the joinder of persons nowhere permit the procedure adopted by the learned Magistrate. The first offence was committed by three person. The second offence was committed six days thereafter by those three persons and three others. These two offences cannot be joined under any of the provisions of the Code of Criminal Procedure. The trial is therefore illegal on this ground.
The next case relied on by the Appellants is of Bir Singh and Another Vs. Sm. Hashi Rashi Banerjee and Others, . That was a case wherein the accused was charged of infringement of the provisions of the Bengal Highways Act (Act 3 of 1925). As it appears, there were two proceedings pending against the accused. The Magistrate amalgamated those two proceedings and directed that the two complaints in the two cases be merged in one. Deprecating the action of the Magistrate, it was held thus:
The encroachments complained of in the two cases are entirely different and they constitute if proved wholly separate infringements even according to the prosecution. Complaint is now made that by reason of the consolidation of these two proceedings into one there is chance or likelihood of prejudice accruning to the Petitioner. I think there is considerable force in this contention. The mere fact that the Petitioner happens to be the same person proceeded against in both the proceedings and that the infringements alleged relate to violation of the provisions of the Bengal Highways Act as a mended by West Bengal Act 17 of 1953 will not he sufficient justification for amalgamating the two cases and trying them as one. It is unnecessary to set out in detail the danger of such a course.
The next case relied on is Satish Chandra Chakrabarty Vs. Subrata Majumdar, . That was a case where the Magistrate directed that the three cases shall be tried in the same trial by amalgamating the other two with the remaining one. It appears that there were three cases instituted by the complaints made by three different complainants in respect of occurrences of three different dates against the same accused persons named Subrata Majumdar alias Mantu Majumdar. Denouncing the act of amalgamation, the learned Judge observed thus:
There is no manner of doubt that beyond the ambit of Section 231 Criminal Procedure Code, there is no provision in the Code of Criminal Procedure for amalgamating cases. The sections relating to the joinder of charges and the joinder of persons nowhere permit a Magistrate to "amalgamate" case that by strict adherence to the provisions of the Code need be separately tried.
It was stated by the Magistrate that each case should not lose its identity. The offence u/s 323 was common to all. In the first case, there was an additional offence u/s 504, Indian Penal Code. Accordingly it was held that Section 234 did not apply and that the order of amalgamation was illegal and without jurisdiction. In this case, the earlier Full Bench case Osman Mistry and Anr. v. Ahd Krishna Ghosh and Anr. AIR 1949 Cal. 632 was relied on. The next case cited on behalf of the Appellants is Koli Raja Sarwan and Another Vs. The State of Gujarat, . That was a case where 5 charge sheets had been submitted against two accused persons on the allegation of misappropriation for each of the years 1959. 1960, 1961. 1962 and 1963. Five Sessions trial were held on the basis of the committal orders In respect at five charges. But in course of the trial a novel procedure was adopted by the Sessions Judge. At the tilde of hearing, a preliminary objection was taken and the earned Judge opined thus:
At the outset a preliminary objection was raised before me on behalf of the Appellants. It related to the procedure adopted by the Sessions Court during the trial of these five cases. It appears that most of the materia I evidence was recorded in Sessions Case No. 4/65 and then by the consent of the learned Public Prosecutor and the learned advocates of the two accused, copies of that evidence oral and documentary were placed in the record of the other four cases and treated as part (''If the evidence recorded in those cases. No doubt some other evidence was also led in the other four Cases but the evidence relating to the capacity in which the two accused had worked with respect to the Society the evidence relating to their duties and responsibilities, the evidence in respect of the maintenance of accounts and absence of credit in respect of the payments made the evidence in respect of the falsification of accounts, documents and vouchers in July 1963 when the embezzlement was discovered and the general evidence relating to the working of the Society, was allied in Sessions Case No. 4/65 and copies of that evidence were placed on the record of each of the other Sessions Cases as part of the evidence of each of thus cases. The learned advocates of the Appellants contended that this is an illegality and it is not cured by Section 537 of the Criminal Procedure Code. They further contend that the convictions of all the five cases must therefore be set aside and are-trial ordered. They submit that even in respect of sessions case No. 4/65 where the whole evidence for that case is actually recorded, it is but proper that the conviction be set aside and a retrial ordered.
There is no doubt that the procedure adopted by the learned Sessions Judge was illegal. Section 233 of the Code of Criminal Procedure provides 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 except in the cases mentioned in Section 234, 235, 236, and 239 of the Code. Therefore, these five cases could not have been tried together unless they could be brought within the ambit of any of the Sections 234, 235, 236 and 239 of the Criminal Procedure Code. The learned Assistant Government Pleader concedes that they cannot be so brought. The cases therefore were correctly separately committed. Now after the commitment when the learned Additional Sessions Judge was ready to hear the cases, the procedure to be followed as laid down in Section 285, Criminal Procedure Code, was that the prosecution was to open its case and then to examine its witnesses. Section 288 of the Code permits the evidence of a witness recorded in an inquiry under Chapter 2\\. VIII of the Code, to be treated as evidence in that case before the Sessions Court if such witness is produced and examined. Sections 289 and 290 of the Code provide that after the examination of witnesses for the prosecution is concluded and the accused h as been examined by the Court the accused is entitled to examine his witnesses, if any. Thereafter follow the provisions relating to the submission of arguments and the delivery of the judgment by the Judge. Therefore the evidence on which the learned Sessions Judge proceeds to deliver the judgment must be the evidence recorded in the trial. The Code does not appear to contemplate a trial on evidence which is not recorded in that trial. It may be that a witness earlier examined in a proceeding between the parties, is dead or is not available though living for any of the reasons set out in Section 33 of the Indian Evidence Act. In such a case, it is permissible to have his evidence given in the earlier proceeding brought on record as evidence at the subsequent proceeding, if the conditions laid down in that section are satisfied. Now, in the present case, it is not the prosecution case that Section 33 of the Indian Evidence Act was attracted or that the learned Judge purported to act under that section. In fact there is no order of the Judge in the record. In the body of the judgment, the learned Judge merely refers to the consent of the three learned advocates (meaning the public prosecutor and the two defence advocates) to treat some of the evidence recorded in Sessions Case No. 4/65 as evidence in the other cases. After referring to the witnesses whose evidence he proposed to treat as common to the other Sessions cases - there are 20 such witnesses the learned Judge states that the exhibit numbers of the documents, proved in the testimonies of those witnesses, have been given in Sessions Case No. 4/65 and that the discussion d the evidence of those witnesses and those documents and the inferences to be drawn therefrom is to be treated as common in all five Sessions Cases. This is the only reference for taking the evidence recorded in one case en record in ether cases. There is no mention by the learned Judge under what provisions of law he has taken the evidence of those witnesses and the documents produced through them as part of the evidence recorded at the trial of the other four Sessions Cases. The consent of the three advocates which is the only fact referred to by the learned Judge in support of the procedure adopted by him, cannot justify the nonobservance of the provisions of law relating to the manner of a criminal trial. Some of these witnesses are very material witnesses and one of them is a witness who proves the alleged confession made by accused No. 2. It is clear on these facts that the learned Judge committed an illegality in the procedure adopted by him in so far as it related to the trial of Sessions Cases Nos. 5, 6, 7 and 8 of 1965.
Now the infringement of these provisions of law in respect of the trial of the Sessions Cases Nos. 5, 6, 7 and 8 was infringement of the provisions relating to the mode of trial. Such an infringement is not curable u/s 537 of the Criminal Procedure Code. Clause (a) of the section which is relevant provides that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code. An irregularity which can be cured this provision is an irregularity in the conduct of the trial. Where the procedure laid down by the Code has been followed but not been wholly followed, the irregularity be curable under this provision, but not where the procedure laid down in the Code is wholly departed from as in this case. This position has not been disputed by the learned Assistant Government Pleader. Therefore it would be enough to refer to the observation made by the Privy Council in Pulukuri Kotayya v. Emperor AIR 1941 P.C. 67. Their Lordships say:
When a trial is conducted in a manner different from that prescribed by the Code the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured u/s 537 and nonetheless so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code.
In answer to the citations relied on by the learned Counsel for the Appellants, the authorities relied on by the state are Banwari and Anr. v. State of U.P.A.I.R. 1961 S.C. 1198. S. Swamirathnam Vs. State of Madras, , Puttaraju and Anr. v. State of Mysore 1962 Mys. L.J. 880 and Origanti Ramchandrayya Ors. V. Emperor 56 Mad WN 627.
The first case Banwari and Anr. v. State of U.P.A.I.R. 1961 S.C. 1198. was a case where accused Banwari was convicted of an offence u/s 302, Indian Penal Code for having committed the murder u/s 307, Indian Penal Code for having attempted to commit the murder of Babu Singh. The other accused Ram Charan was convicted of the same three offences read with Section 34, Indian Penal Code. The facts were that both Banawari and Ram Charan armed with a gun and an axe respectively while passing through the field of Lakhan Singh, Banwari fired two shots at deceased Lakhan who fell dead. Thereafter both Banwari and Ram Charan proceeded and at a distance of about 6 or 7 furlongs met Bhagwan Singh who was grazing cattle. While Bhagwan Singh turned his back, accused Banwari again fired a shot at him as a result of which Bhagwan sat down. Then Banwan fired two more shots killing Bhagwan Singh on the spot. As the villagers pursued the two accused, Banwari fired at them which hit one Narayan Singh. On this, a report was lodged at the Police Station with respect to these incidents. The Police submitted three charge-sheets u/s 173, Criminal Procedure Code. The committing Magistrate registered three cases - one with respect to the murder of Bhagwan Singh and third with respect to the gun-shot injury on Narain Singh u/s 207, Indian Penal Code. Ultimately he committed both the accused for trial to the Court of sessions in each of the cases, namely, Sesss. Trials Nos. 34, 37 and 38 of 1960. There were three separate commitment orders.
At the commencement of the hearing before the Sessions Court, presumably as the three cases were posted for the same day, the learned Sessions Judge amended the charges in S.T. No. 34 of 1960 and then passed the following order:
The S.T. 37/60 and 38/60 are consolidated with the case and evidence is recorded in the present case (under Section 234, Criminal Procedure Code). The L.D.G.C. (opened his case and examined the follow 109 witnesses.
While writing out the judgment, he opened it thus:
Three Sessions Trials Nos. 34, 37 and 38 of 1960, in which both Banwari and Ram Charan figure as accused persons, were heard together, and are being disposed of by one judgment.
xx xx xx
On behalf of the convicted accused persons, it was contended inter alia before the High Court that:
The Sessions Judge conducted three separate trials on the basis of the three commitment orders but recorded evidence in one case only, i. e., in Sessions Trial No. 34 of 1960. Such a procedure which in a way amounted to the amalgamation of the three Sessions Trials into one, was not warranted by the provisions of the Code of Criminal Procedure and that this error in the mode of trial being not curable u/s 537 of the Code, vitiated it.
On behalf of the State, the contention was that both the Appellants Banwari and Ram Charan could have been tried in one trial for the offences with which they were charged in view of the provisions of Sections 234 and 235 of the Code of Criminal Procedure. Negativing the contention on behalf of the Appellants, their Lordships held thus:
Section 234 allows the trial of a person accused of three or less number of offences of the same kind committed within the space of twelve months, and provides that offences of the same kind are those which are punishable with the same amount of punishment under the same section of the Indian Penal Code or of, any special or local law. The two offences u/s 302 with respect to the murder of Lakhan Singh and Bhagwan Singh are punishable under the same section of the Indian Penal Code with the same amount of punishment. In view of the proviso to Section 234, an offence of attempting to commit an offence is of the same kind as that other offence. Thus the offence u/s 307, Indian Penal Code is of the same kind as the offence u/s 302. The three offences of which the Appellants wet-e charged, therefore, are of the same kind and one joint trial of those offences would therefore be justified u/s 234 of the Code.
Section 239 lays down the joinder of persons at one trial and provides that persons accused of more than one offence of the same kind within the meaning of Section 234 committed by them jointly within a period of twelve months could be charged and tried together. Therefore, the trial of both Banwari and Ram Charan for the aforesaid three offences each of which was alleged to have been committed by them jointly within twelve months, would have been justified.
On the point of amalgamation of the three different sessions cases, their Lordships observed thus:
The committal order just gives the Sessions Court cognizance over the trial of the persons committed. The committal order does not bind the Sessions Judge to try those persons alone at one trial, who ''have been committed by the particular committal order. The question of the trial of the various committed persons does not depend on the number of committal orders, but on the provisions of Sections 233 to 239 of the Code. If one trial can be justified under those provisions and there is no prejudice to the accused, the Sessions Judge can certainly consolidate the committal orders in those cases and try the accused at one trial. He may, for the purpose of the trial, frame a fresh charge with appropriate counts against the accused, in substitution of the charges framed by the Magistrate in the different committal proceedings. If the persons have been committed by one committal order alone with respect J to different offences which could not be tried at one trial in accordance with these sections, the joint trial of those persons on those charges would be illegal. This makes it clear that the validity of a joint trial before the Sessions Judge is dependent on the fact whether the provisions of the Code justify one joint trial or not.
We, therefore, hold that though a Sessions Judge cannot try at one trial persons committed under different committal orders with respect to distinct offences whose joint trial is not warranted by the provisions of Sections 234 to 239 of the Code, he is competent to try at one trial persons who can be tried at (me trial under the provisions of those sections even if there had been separate committal orders.
In the circumstances of that case, their Lordships held that:
.... the learned Sessions Judge did not purport to consolidate the committal orders and try the accused jointly at one trial though really that is what actually happened when he recorded evidence in one case only and presumably he examined the accused also once. He heard the arguments once and he actually delivered one common judgment in all the three. Sessions Trials. There, therefore, does not really arise in the present case the question that the Sessions Judge wrongly amalgamated or consolidated the three Sessions Trials. In the circumstances of this case the trial is not vitiated by any procedural error nor has any prejudice been shown to have caused in the conduct of the trial or its result....
The above case is entirely different from the case at hand. There, offences of the same kind were committed within a space of half an hour. The accused who was armed with a gun killed two persons by firing four shots and while chased by the villagers injured one of them. Thus, they were in course of the same transaction. One charge sheet in this background could have been filed and there could have been one commitment. Merely because three charge sheets were submitted and three commitment orders were there, the Sessions Judge was not bound by them and that is exactly what their Lordships have held. But in the case at hand in Criminal Appeal No. 92 of 1973 all the 19 Appellants were charged of criminal conspiracy and for making preparation to commit dacoity. In the second case, that is, Criminal Appeal No. 91 of 197 j, out of those 19, only 15 had been charge sheeted u/s 27 of the Indian Arms Act and under Sections 4(b) and 5 of the Explosive Substances Act. Obviously this was on the basis of recovery of certain incriminating articles from the houses of accused Nos. 1 and 3. In fact, as already indicated, when the adult members were absent, certain incriminating articles were seized from the house of A. 1 M. Balayya of Chintagunalu on 20-6-1970. But vaguely enough all the 15 persons were entangled in that case under the Arms Art as well as under the Explosive Substances Act. In the third case, that is Criminal Appeal No. 96 of 1973 on 19-6-1970 from the house of P. Bujjayya (A. 3) of Allurkota some country made hand-bombs along with some Naxalite literature were seized. The evidence is clear that the house of A. 3 had not been raided at all on 20.6.1970 and therefore the question of recovery of any arms or explosives does not arise. Accordingly the charge as against A. 3 for the raid held on 20th June, 70, at Chintagunalu is concerned is unsustainable, not withstanding that he has been convicted in that case as aforesaid. Further on account of the alleged recovery of certain explosive materials from the house of A. 3 on 19th June, 1970 he has also been convicted. Thus in the three cases clubbed together, the accused persons are different, the cases are not of the same nature, nor they have been committed on the same day or in course of the same transaction. Each act is independent. As such, the citation referred to above is of no assistance to the prosecution in the instant case.
The next case, namely, Puttaraju and Anr. v. State of Mysore 1962 Mys. L.J. 880 deals with a case of a public servant who was held guilty u/s 466, Indian Penal Code. In that case, during the course of the hearing it was contended on behalf of the Appellant that:
.... the trial of the case was vitiated because of the fact that the evidence of witnesses examined in Sessions Case No. 13 of 1960 was treated as evidence in the other case.
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In the trial Court the parties had filed a joint memo praying that the evidence of witnesses examined in one case be read as evidence in another case, if the same is affirmed by the concerned witness again. It was agreed that a copy of his prior deposition be marked as his deposition and the learned Counsel for the defence be permitted to further cross-examine the witness if he thought it necessary. In this case, it may be noted that most of the witnesses could only have parrot like repeated their evidence in each and everyone of the cases. The evidence adduced is a question of prejudice, (sic) we have no doubt that no prejudice has been caused to the accused. But, a question may arise whether the Court had adopted a mode of trial, not provided for by law, in which case, the question of consent or even prejudice becomes immaterial.
Finally their Lordships held that in that case there was no prejudice and as such did not interfere with the finding. This case has no relevance to the case at hand. The other two cases, namely, S. Swamirathnam Vs. State of Madras, , Origanti Ramchandrayya and Ors. v. Emperor 36 Mad WN 627, refer to multifariousness of charges and so need not be treated in extenso.
The gravamen of the argument on behalf of the Appellants was that the dubbing up of the three cases is illegal and has vitiated the trial. From the above discussions it would follow that the procedure adopted by the learned Assistant Sessions Judge is not countenanced by law. Different sets of accused persons accused of different kinds of offences of which the cause of action is varying cannot be tried in one trial. As already indicated, the 19 accused persons in the second case (Cr. App. 92/73) and the 15 accused persons in the first case (Cr. App. 91/73) have been convicted of different offences committed at different times. In the 342, Criminal Procedure (old) examination, one set of questions has been put to all the 19 Appellants which is confusing for some of the accused persons were not charged of possessing arms or explosive substances. The procedure adopted is violative of the provisions of Section 233 of the Code of Criminal Procedure (old). The argument on behalf of the State that it would come under the Exceptions, i.e. Section 235 and 239, Code of Criminal Procedure (old) is barren of substance. To cut the matter short, I would hold that the trial is not only irregular but illegal which has in fact caused prejudice and embarrassment to the accused Appellants. As such, their convictions and sentences cannot stand.
This leads to the next question whether a fresh trial should be ordered. For the reasons given hereunder, I do not think it a fit case where such a course is to be adopted. To mention a few the accused persons were apprehended sometime in June, 1970 (20.6.1970). The judgment was passed on 12.4.1973. They had not been granted bail. So by the time of the judgment they have remained as under trial prisoners for nearly two years and 10 months less by 8 days further, after the conviction uptill now they have suffered imprisonment for almost two years and 8 months. Their total period of incarceration being nearly 5 years and 5 months. Secondly, even on facts I do not think the prosecution has a formidable case. The charge under criminal conspiracy appears shaky. It is not the case of the prosecution that the conspiracy was about doing of any illegal act to come u/s 120-A(1), but it comes u/s 120-A(2), for, from the literature seized, there is no direct exhortation for committing dacoity but for distribution of the riches of the rich to the poor. The object, therefore, iS noble, though the method proposed, namely, by robbing the rich, is illegal. Under the Proviso to Section 120-A(2) besides the agreement, there must be some act done by one or some such party to such agreement, in pursuance of conspiracy, to constitute an offence but here no such allegation is there. That apart, so far as the charge u/s 399, Indian Penal Code is concerned, it is confined to A. 1 and A. 2. The nine meetings referred to by the prosecution are either exhortations to join the camp of Naxalites and that too under threat and coercion. It has been held in the case of Jagannath Misra v. State of Orissa 40 (1974) C.L.T. 1253, that mere exoratation to take to Naxalite methods without anything more, may not satisfy the requirements of Section 120A of the Code. Regarding the other two charges, there is enough force in the contention of Mr. Misra for the Appellants that the identification of accused No. 15 is inconsequential and the recovery of the incriminating articles from the houses of A. 1 and A. 3 is suspicious. In this setting, I am not persuaded to direct a retrial of the cases.
In the result, therefore, the three appeals are allowed, the convictions and sentences of all the Appellants, namely, M. Balayya, (A. 1), Siriguru Bujjayya, son of Sudayya (A. 2), Palasi Bujjayya son of Debayya of Alurkota (A. 3), M. Gangayya (A. 4), Pangi Baleswar Rao (A-5) Palasi Sundarayya (A. 6), Siriguru Singayya (A 7), Jeeram Tellanayya (A. 8), Papala Bujjayya son of Papala Balayya of Chintagunalu (A. 9), Palasi Burrayva (A. 10), Naini Lachhayya, A. 11), Palasi Ramayya alias Kodakaya (A. 12), Marigili Endayya (A. 13), Koala Bujjayya (A. 14). S. Radha Krishna. Murty (A. 15), Palasi Bujjaya son of Gangayya of Alurkota (A. 16), Palasi Bujjayya son of P. Ramayya of Guralur (A. 17), Naini Ballayya (A. 18); and Pangi Balayya (A. 19) are set aside, they are acquitted of all the charges and they be set at liberty forthwith.