Budhai Sheik vs Emperor on 22 July, 1905

Calcutta High Court
Budhai Sheik vs Emperor on 22 July, 1905
Equivalent citations: (1906) ILR 33 Cal 292
Author: P A Woodroffe
Bench: Pargiter, Woodroffe


Pargiter and Woodroffe, JJ.

1. The petitioners have been convicted under Sections 879 and 143 of the Penal Code. It is alleged that certain linseed was looted on the 22nd February and certain tobacco on the 23rd February by an unlawful assembly consisting of the same persons, of whom the petitioners were the leaders. It is contended that the trial was bad in that two distinct offences, involving occurrences of two different dates and alleged to have been committed by more than one person, have been tried jointly in one trial. A Rule was granted on this ground, as also on the ground that the petitioners should not have been summarily tried. As regards the first point, which we need alone consider, the Magistrate in his Explanation submits that the case comes within Section 234 of the Criminal Procedure Code, which permits of three offences of the same kind within one year being charged together. In this case the theft and unlawful assembly on the 22nd February were parts of the same transaction; as were also the alleged offences on the next day. But the events of the 22nd and 23rd February do not appear to form part of the same transaction; nor is the joinder complained of defended on that ground, but on the ground that the petitioners committed two offences of the same kind on two separate dates within the space of twelve months.

2. The question to be determined shortly is whether Section 234 of the Criminal Procedure Code, which in terms refers to a single person, applies where several persons are jointly accused. No doubt, as provided for by the General Clauses Act, words in the singular shall include the plural and vice versa, but this is only where there is nothing repugnant in the subject or context.

3. Section 234 is one of a number of sections which are grouped together under the heading of “joinder of charges.” This may, and in fact does, refer to charges both against single and several accused. But the sections under the general heading relating to these respective cases are kept separate. Section 233 lays down a general rule. Sections 234 to 238 by their terms refer to the case of a single accused. Then Section 239 deals with the case where more persons than one are accused, and is followed by Section 240, which enacts a general rule as to the withdrawal of charges.

4. It appears to us, therefore, that the Legislature intended to and did by these sections differentiate between the cases of a single and several accused, and that it cannot be said that all the sections prior to Section 239 apply to both these cases, though in terms they refer to one only, viz., that of a single accused. The existence of a Section (239) specifically dealing with the case of several accused and the arrangement of the sections to which we have referred constitutes such a repugnancy in the context as pre-vents us from reading “a person” in Section 234 as including several persons. Section 239 provides that several persons may be charged and tried jointly only when they are accused of the same offence, or of different offences committed in the same transaction, namely, the case referred to in Section 235, where there is but one accused. The provisions contained in Section 234 are not applicable where there are several accused, possibly because otherwise complication and confusion in the trial might ensue.

5. We accordingly set aside the conviction and sentence, and direct that the accused be retried by another Magistrate than the Magistrate, who has already tried the case. Such retrial must be held with reference to the directions herein made, and, if summarily, after hearing and determining any objection that may be made to that form of trial.

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