Umar Bin vs The State

Shah, C.J.—This revision application has been filed against an order of the Sessions Judge, Halar Division, confirming on appeal, the

conviction of the applicant Umar Bin Abu under Sections 304A, 338 and 279, I.P.C. and Section 116 of the Motor Vehicles Act and the

sentences thereunder passed by the First Class Magistrate of Bhanwad. The case arose out of a collision of two motor buses resulting in the death

of one passenger travelling in the bus driven by the applicant and grievous hurt to Anr. passenger of the same bus. The drivers of the two vehicles

were charged with the abovesaid offences and were tried together and both of them were convicted by the learned Magistrate. The driver of the

other vehicle Jeram Meghji, accused No. 2, has been acquitted by the learned Sessions Judge on appeal.

The only point urged in this revision by Mr. Chimanlal Shah for the applicant is that the joint trial of the two accused for the abovesaid offences

was not permissible u/s 239(d), Code of Criminal Procedure and was illegal, and that the conviction of the applicant is therefore bad and should be

quashed. u/s 239(d), persons accused of different offences committed in the course of the same transaction may he charged and tried together and

the question therefore is whether the offences with which the two accused were charged and tried in this case can be said to have been committed

in the course of the same transaction. There are numerous decisions of the different High Courts on the meaning and interpretation of the words

''same transaction'' and since judicial opinion on the point is almost settled, it is unnecessary to refer to any particular decision. The consensus of

judicial opinion is that the expression ''same transaction'' implies a community of purpose and continuity of action. When more than one person are

tried together u/s 239, the unity or oneness of purpose assumes the more important aspect. Unity of place or proximity of time is in such a case not

the material test. The material test is the unity of purpose of the persons doing different acts, and if these acts are done by them with the object of

or in pursuance of a certain end in view, then they may be deemed as parts of the same transaction. Now applying this test to the present case the

question is can the two accused be Said to have an identity of purpose or community of purpose between themselves. They were driving their

buses in opposite directions and the act of driving was an individual act of each of them. There was nothing like an association between them from

before, nor any commons-purpose which they had in view or which they were to achieve or to carry out. In the nature of things there cannot be

any agreement or a joint intention of them both to do certain acts. The two accused had not set out on any purpose common to both; on the

contrary they casually crossed each other on the road. So far as the driving of the respective buses is concerned, each was engaged in an

independent act of his own and these acts were not parts of the same transaction obviously because there was no identity or community of purpose

between them. What has transpired is that on account of rash and negligent driving, which has been alleged against both the accused, the two

buses collided with each other and as a result one passenger was killed and Anr. lost his tooth. It is only at the point of the collision that two buses

came together. The learned Advocate General has urged that the collision itself should here be taken as a transaction and it should be deemed to

be the same transaction and that as death and grievous hurt have resulted from that transaction, the offences can be deemed to have been

committed in the course of the same transaction, and the two accused can be tried together. As to this Mr. Chimanlal Shah contends that the

collision was the effect or the result of two independent transactions and was not in itself a transaction, and that it being an effect of the acts of two

persons, who were not animated by the same purpose, it will not constitute the same transaction. There is much to be said in this contention urged

by Mr. Shah. The learned Advocate-General has cited to us a ruling of the Madras High Court reported in - ''M.K. Baliah v. Emperor 1931 M

WN 556 (A) where it was held that the two drivers of the colliding buses can be tried together u/s 239(d), Code of Criminal Procedure The

reported judgment is not before us, but it appears from a digest of the case reported in Iyer''s Digest cited to us that their Lordships of the Madras

High Court indirectly conceded that it cannot be said that the parties engaged in driving the two vehicles had a similar or identical purpose in view

but in their Lordships'' view a similar or identical purpose is not the only test or the correct test to apply to a case of motor collision, as a result of

which several persons were killed, and that in such a case the two drivers can properly be tried together. The point emphasised in the above

Madras case is not free from doubt and since the present case can be decided on other grounds, we do not pronounce a final opinion on the

question and leave it open for a decision in future.

The two accused have been charged not only with offences under Sections 304A and 338, I.P.C., but also with offences u/s 279, I.P.C., and

Section 116, Motor Vehicles Act. It may be assumed for the purpose of discussion that the first two offences can be said to have been committed

in the course of the same transaction so far as the two (accused?) were concerned, but it is difficult to see how the offence u/s 279, I.P.C. can be

deemed to have been committed in the course of the same transaction to which the two accused were parties as being animated by the same

purpose. That section makes punishable an act of rash driving or riding in a public way in a manner so rash or negligent as to endanger human life

or to be likely to cause hurt or injury to any other person. It contemplates acts by each individual person driving the vehicle and it envisages the

culpability of each individual driver. No question of an impact or collision between two vehicles can arise in a case falling u/s 279, and the driver is

punishable for his own individual rash or negligent driving. It is an offence committed independently of any one else and no other person figures in

the transaction with the result that there is no question of two persons committing offences in the course of the same transaction. The same

reasoning applies to Section 116, Motor Vehicles Act, which punishes a driver of a ''motor vehicle driving recklessly or dangerously having regard

to other circumstances specified in the section. The driving of their respective vehicles by accused Nos. 1 and 2 in this case are their independent

acts and might amount to an offence in certain circumstances, on their own, and independently of each other, or to be precise, without their

colliding with each other. Even if no collision takes place they could have been prosecuted under this section and u/s 279, I.P.C., and quite

evidently the said offences could not have been treated as having been committed in the course of the same transaction and they could not have

been tried together. The fact that a collision had taken place and offences under Sections 304A and 338 had occurred will not make the offences

u/s 279, I.P.C. and Section 116, Motor Vehicles Act, as committed by the two accused in the course of the same transaction, though in the case

of each particular accused charged separately they can be taken as offences committed in the same transaction. So far as the offences u/s 279,

I.P.C., and Section 116, Motor Vehicles Act, are concerned, there was nothing like a same transaction as between the two accused and they

could not have been tried together in respect of the said two offences. Their joint trial in respect of the offence u/s 279, I.P.C., and Section 116,

Motor Vehicles Act, is therefore distinctly illegal and it vitiates the whole trial.

The misjoinder of offences in the same trial in disobedience of Section 239 is an error in the mode of the trial, and goes to the root of the matter.

It cannot be cured u/s 537 as there is a necessary presumption of prejudice and actual prejudice to the accused need not be shown: - ''Subramania

Iyer v. King Emperor'' 25 Mad 61 (B); and the judgment of Meredith J. in - Sk. Nabijan and Others Vs. Emperor, . As it is, Mr. Shah has

strenuously urged that accused No. 1 has been prejudiced by reason of the misjoinder but since in our opinion there is a presumption of prejudice

the question of actual prejudice need not be considered. The result is that the joint trial of the two accused persons in this case was illegal. We,

therefore, set aside the conviction and the sentence of the applicant and direct that he may be retried separately on the charges brought against him.

BAXI, J.

I agree.