P. Rangiah Chetty vs Union of India (UOI)

Ratnavel Pandian, J.—Crl. R.C. Nos. 1243 and 1244 of 1973 arise out of a common judgment rendered 8gainst the Petitioners in both the

cases, who were accused Nos. I and 2 in C.C. No. 3600 of 1973 on the file of the Court of the Chief Presidency Magistrate, Egmore. Crl. R.C.

274 of 1974 is one filed by the Union of India represented by the Assistant Collector of Customs, Preventive Department, Madras-1, for

enhancement of the sentence imposed by the Chief Presidency Magistrate against the Petitioners in the abovesaid two revision petitions, in C.C.

3600 of 1973.

For the sake of convenience, in this order I shall refer to the Petitioners in Cr.R.C. 274 of 1974 as the complainant.

The complainant filed a private complaint against the two accused, viz., B. Rangaiah Chetty (accused-1) and S. Ahmed Yasin (accused-2) for

offences punishable u/s 135 of the Customs Act and Section 85 of the Gold Control Act. The allegation against the first accused is as follows: On

9th December, 1970, at about 4-45 p.m., he was intercepted, by the officers of the Customs Department at the State Transport Express Bus

Stand, Esplanade, when he was about the board the but bound for Madurai. He was taken to the Traffic Manager''s room where he was

searched. The search revealed a cloth belt tied around his waist underneath his under-wear which on examination was found to contain eleven bars

of gold of foreign origin in two paper packets. He had no licence or permit entitling his legal possession of the contraband goods. The further case

of the prosecution is that on the information furnished by this accused, the officers of the Customs House, Mad as searched a portion in the second

floor of premises No. 13, Post Office Street, George Town, Madras, in the occupation of the second accused, at 10-30 p.m. on the same day,

and during the search, the second accused was not present in the house. The search resulted in the recovery of 25 bars of gold of foreign origin

wrapped in a newspaper and underneath the mattress of a steel cot and the second accused had no permit or licence or any other document

entitling his legal acquisition of the said contraband goods. The prosecution has examined five witnesses and recorded common evidence as both of

them were tried together. P.W.1 is a Preventive Officer attached to the Madras Customs House. He speaks about the interception and search of

the first accused. It is his evidence that the first accused bad three Express Bus Tickets (M.O.3 series) for travelling from Madras to Trichy with

his mother and his younger brother, and that he was wearing a cloth belt (M.O.1) from which the paper packets containing 11 gold bars of foreign

origin marked as M.O.2 series were recovered. As the first accused was not in possession of any permit or licence entitling his legal possession of

the said M.O.2 series, P.W.1 seized M.O.1 to 3 series under a mahazar Ex. P-2 in a reasonable belief that they were smuggled goods. P.W.2 and

one Thiru Edward Thambi have both attested the search-list Ex.P-1 and the mazhazar Ex.P.2. Further, it is the evidence of P.W.1 that he took

accused-1 with the material objects recovered, to the Customs House where accused-1 himself has written down a statement Ex.P.7 in English

and handed it over to P.W.1 after having signed it. M.O.2 ""series were sent to the Chemical Examiner for test, under a memo, by P. W. 5. Ex.P-

11 is the report of the Chemical Examiner.

On the information furnished by the first accused, P.W.1 would say that he proceeded to premises No. 13 Post Office Street, George Town,

Madras, at about 10-30 p.m, on 9th December, 1970, armed with the search-warrant Ex.P.3. It is alleged that the second accused was a tenant in

respect of the second floor of the said premises. P.W.1 searched the portion in the occupation of the second accused in the presence of P.W.4,

the owner of the said premises, and one Radhakrishnan. The second accused was not present at the time of the search. But, one Ibrahim Shah, a

cock working under the second accused, was present. The search made by P.W.1 resulted in the recovery of 25 bars of gold (M.O.4 series) with

foreign markings, from underneath the mattress of an iron cot. Besides the gold bars, there were some other materials such as two transistors, a

gold ring with the letter ""Y"" in Enamel, a rent receipt for Rs. 160/- in the name of the second accused (Ex.P-4), an envelope containing the three

pass-port sixe photographs of the second accused (M.O.5 series) and an application form for obtaining pass-port along with enclosures (Ex.P-S

series). P.W.1 seized) all these articles under Ex,-P-6, attested by P.W.4 and another. P.W.3, the Senior Preventive Officer, Customs House,

Madras, obtained a statement Ex.P-8 in Tamil from the second accused on 17th December 1970. These M.O.4 series were also sent by P.W. 5

to the Chemical Examiner for test, under a memo Ex.P-l2. Ex.P.13 is the report of the Chemical Examiner.

Show cause notices under Exs.P-14 and P-15 under the Customs Act and the Gold Control Act were issued to the first and second accused

respectively. Exs.P-16 and P-17 are the replies dated 7th August 1971 and 20th July 1971 sent by accused 1 and 2 respectively, Ex.P-18 is

another reply dated 24th July,lt71 by the Authorised Consultant of accused-2. The Additional Collector of Customs passed the order of

adjudication under Exs.P-l9 and P-20, as per the provisions of the Customs Act and the Gold Control Act respectively, confiscating the

contrabands (M. Order 2 series) and M.O.4 series, recovered from the respective accused and also imposing penalties on both of them. After

obtaining sanction, from the Collector of Customs as per Exs. P-21 and P-22, this complaint has been laid against these two accused.

When questioned u/s 342, Code of Criminal Procedure accused-1 practically admitted that be gave Ex.-P-7 on his own volition and that

another statement given by him has not been produced by the Customs Authorities and further he pleaded that he might be excused for the crime

committed by him. The second accused has denied his complicity in the crime, but would claim the gold ring, the transisters, the rent receipts and

the photographs to have belonged to him. He has also stated that he had nothing to do with the gold bars (M.O.4 series) and that he is not guilty of

the offence with which he stood charged. To the charge framed against accused 1 and 2 respectively u/s 135(b)(ii) of the Customs Act read with

Section 8(1) of the Foreign Exchange Regulation Act, 1947 and Section 85(ii) of the Gold Control Act the first accused pleaded guilty; but the

second accused pleaded not guilty to the charge.P. Ws.1 to 5 were then recalled at the instance of the second accused and cross-examined. But,

the second accused did not examine any defence witness on his behalf. The trial Court, after assessing the evidence, has found both of them guilty

of the respective charges framed against them and convicted them thereunder and sentenced each of them to undergo rigorous imprisonment for six

months on each count and directed the sentences to run concurrently.

Cr. R.C. 1243 of 1973 is admitted only on the question of sentence, though the learned Counsel for the Petitioner has raised various points in

the memorandum of grounds But, as there is a revision petition for enhancement of the sentence and show-cause notice has also been issued to

him, the revision-Petitioner now challenges the very same conviction, as adumbrated u/s 439(6) Code of Criminal Procedure Now, Mr. Sunder,

appearing for the Petitioner has vehemently argued that the entire trial is vitiated by misjoinder of parties. In Cr.R.C. 1244 of 1973. Mr. V.T.

Rangaswami Iyengar and Mr. K. Ramaswami, appearing for the Petitioner, have raised a legal question viz., that the entire trial is vitiated by mis-

joinder of parties and as such the conviction passed by the trial Court should be set aside ,besides the other main ground that the evidence

adduced by the prosecution in this case cannot support the charge that the Petitioner was in possession of the said gold bars, contravening the

provisions of the Customs Act and the Gold Control Act.

Before going to the other points raised in the memorandum of grounds in both the revision petitions, I have to give a finding on the common legal

contention raised by the Counsel appearing for both the accused viz., whether the joint trial conducted in respect of both the accused is vitiated by

misjoinder of parties and as such whether the entire convictions against both the accused have to be quashed. If the accused succeed on this legal

question, then there is no need to go into the other points raised by them as my observations in respect of the other points may influence the mind

of the trial Judge in case of remand.

For a joint trial of several persons charged with different offences, the essential requirement is that all the offences should have been committed

in the course of a single transaction. If the offences are not parts of the same transaction and the happening resolves itself into two or more

separate ones, separate trials would be mandatory and not merely a matter of convenience, where each offence is a completed act in itself and the

original design was accomplished so far as that act was concerned before the next offence was embarked upon there is no community or

continuity. In cases of same transaction, covered under Clause (a) and (i) of Section 239 of the old Code, the words ""same transaction"" comprise

all the acts of all the persons concerned done in the course of carrying through the affair in question and the prima facie test is community and

continuity of purpose. If the above test is not satisfied then a joint trial of the accused is tantamount to an illegal one and therefore the convictions

made as a result of the joint trial have to be set aside and a re-trial ordered. If at all, two or more accused are to be tried together, it could be only

by invoking the provisions u/s 239 Code of Criminal Procedure As I have already mentioned above, to attract the said provisions, the activities of

these two accused must be in the course of the same transaction. Here, the first accused was found in possession of 11 bars of gold at the

Esplanade Bus stand and was arrested at 4.45 P.M. The premises of the second accused was searched at about 10-30 p.m. and 25 bars of gold

were seized therefrom. According to the prosecution, the search of the premises of the second accused was made in pursuance of the information

furnished by accused-1. Besides the evidence of P.W.1 on this aspect, there is the confessional statement of acsused-1, marked as Ex.P-7. Apart

from these two pieces of evidence, there is no other material to show that there was any connection or nexus between these two accused in the

transactions in question. The possession of the first accused of the gold on his person and the possession of gold by aocused-2 in his premises

would constitute two separate, independent and distinct offences committed by the two accused which offences could be tried together only if it

could be shown that these two offences were committed in the course of the same transaction.

The learned trial Magistrate himself, though he has tried both the accused in a single calendar case No. 3600 of 1973, has framed independent

and separate charges in respect of both the accused. In framing the charges against both the accused, it seems that the Magistrate himself was of

the view that the accusations made against the two accused were in respect of two different and distinct offences, and therefore he has framed a

separate charge under two heads as against accused-1 for the independent possession of gold, violating the provisions of the Customs Act and the

Gold Control Act, and another separate charge under two heads as against accused-2 for possession of gold in the premises in his occupation,

violating the abovesaid provisions. This question was fully considered by the Privy Council in AIR 1938 130 (Privy Council) where it hat been held

that the point of time in the proceedings at which it is to be determined whether the condition that the offences alleged had been committed in the

course of the same transaction has been fulfilled or not, is at the time when the accusation is made and not when the trial is concluded and the result

known. In Narayana Bhattav v. King 1948 M.W.N. Cr. 113 a Full Bench of this Court, on a reference made by a Division Bench, while dealing

with Section 239(d), has observed that no general rule can be laid down as to when different offences can be said to have been committed in the

course of the came transaction, but the question when it arises must be determined on the facts of the particular case. The view taken by the Privy

Council in AIR 1938 130 (Privy Council) has been reiterated by the Supreme Court in Kadiri Kunhahammad Vs. The State of Madras, . As I

have discussed (supra), in the instant case, the trial Magistrate, at the time of framing the charges against these two persons, was of the view that

the accusations made against both the accused had arisen out of two different transactions and that was why separate charges were framed against

each of the accused. Mr. Srirangan, appearing on behalf of the Public Prosecutor for the Central Government, has not seriously disputed the above

fact, viz., that these two offences do not constitute a single transaction.

The next question for consideration is whether on account of the joint trial, any prejudice has been caused to the accused, so as to vitiate the

entire trial. Mr. K. Rama-swami, appearing for the second accused, submits that Ex. P. 7 is a confession given by accused-1, wherein he has

made certain allegations against the 2nd accused and has connected him with the affairs relating to his possession of the gold bars. Thus, the

accusations in both the cases are inextricably mixed op. He further contends that accused-1, in his statement under 3.342, Code of Criminal

Procedure has also made mention of Ex. P-7, which is marked as one of the exhibits in the joint trial. According to him, P.W.1, in his evidence,

has stated that he took accused-1 to the Customs House and on the information given by him, he proceeded to the premises in the occupation of

accused-2 and made a search, and therefore the averments in Ex. P-7 and the evidence of P.W. 1 that he traced accused-2 on the information

given by accused-1(sic) should have and in fact had prejudiced the mind of the trial Magistrate against the second accused since both of them were

tried jointly. After going through the evidence of P.W.1. I find that Ex. P-7 was recorded from accused-1 after the search of the premises of

accused-2. Hence, it is clear that the confession was made by accused-I after the entire facts relating to both the accused had come to the

knowledge of P.W.1. Though I am not going into the question of the truth or otherwise of the prosecution ease that accused-1 gave oral

information at the first instance which led to the search of the premises in the occupation of aecused-2 as spoken by P.W.1, the fact remains that

Ex.P-7, the confession given by accused-1 contains allegations about accused-2 also. It is true, as seen from the judgment of the trial Court, that

the learned trial Magistrate has dealt with the evidence standing against accused 1 and 2 separately and has not brought into discussion the

averments contained in Ex.P-7 as against accused-2, while dealing with his case separately. Relying on this fact, Mr. Srirangan would contended

that no prejudice has been caused to the accused, and in fact, the accused have not made any complaint of any prejudice at the earliest point of

time and therefore, according to him, it cannot be said that the accused have suffered any prejudice on account of the joint trial, and the misjoinder

of persons is curable u/s 537, Code of Criminal Procedure I am unable to agree with the contention of Mr. Srirangan. It is true that there are

number of decisions supporting the view that an objection to misjoinder of persons or charges in violation of the provisions of Ss.233 to 239,

Cr.P.C is to be taken at an early stage of the trial, so that there may be time enough to rectify the error. But, it is well-settled by the Supreme

Court that where, such objection is raised for the first time only in appeal or revision, what the appellate or revisional Court has to consider is

whether prejudice has in fact been caused to the accused by reason of such misjoinder. It has been held in Brich Bhutan v. State of Bihart AIR

1968 S.C. 1120 , that after the amendment of 1935, misjoinder of charges (which includes misjoinder of persons also), is saved by Section 537,

Cr.P.C, if it has not occasioned a failure of justice. Then, in another case, via., State of Andhra Pradesh Vs. Cheemalapati Ganeswara Rao and

Another, the Supreme Court has held that the appellate Court or the revisional Court has to consider whether prejudice has in fact been caused to

the accused. Mr. K. Ramaswami would contend that Ex. P-7 and the evidence of P.W.1 about the information given by acused-1 leading to the

seizure of the gold from the premises in the occupation of accused-2, came to be admitted because of the trial being a joint trial, and therefore

prejudice had been caused as it is likely that the mind of the trial Magistrate has been influenced and that but for the joint trial this evidence would

not have been admitted. Further, he would contend that at any rate prejudice has got to be presumed in a case of this nature, where a piece of

evidence would not have been admitted but for the trial having been made joint and where the circumstances do not prima facie indicate the

offences having been committed in the course of the same transaction, Horwill, J., in Moongan and Ors. v. Mir Roshan Alt Sahib 1941 M.W.N.

(Cri.) 125 , has held that where there is a mis-joinder of accused, there is always a possibility that the Court would be unconsciously, prejudiced

by evidence that would be irrelevant if the accused were tried separately. For the foregoing discussions, I am of the view that the contention raised

by Mr. K. Ramaswami that prejudice has been caused to the accused in this case by the joint trial, has considerable force.

I, therefore, conclude that there is misjoinder of persons, which amounts to a manifest illegality, and prejudice has been caused to the accused

by this joint trial, and the trial having thus been conducted if a manner prohibited by law, it has to be held to be altogether illegal. In view of this

finding on the question of law and since I propose to remand the matter for a fresh trial, I do not wish to go into the other questions involved in this

ease.

Hence, Cr.R.C. Nos. 1243 and 1244 of 1974 are allowed and the convictions and sentences (sic)passed against both the accused are set

aside, and C.C.3600 of 1973 is remanded for fresh and separate trials in respect of each of the accused. The cases will be disposed of according

to law by the V Metripolitan Magistrate, Madras, unit flensed by any observation made by me in justification of this order.

In view of my allowing the above two criminal revision cases remanding the case for re-trial, the question of enhancement of the sentences

does not arise at this stage and hence Cr.R.C.274 of 1974 is dismissed.