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Calcutta High Court
Sri Bhagwan Singh vs Emperor on 17 December, 1908
Equivalent citations: 3 Ind Cas 319
Bench: Holmwood, Ryves


1. This was a Rule issued upon the Deputy Commissioner of Palamow to show cause why the conviction of Sri Bhagwan Singh under Section 384, Indian Penal Code, should not be set aside on the ground that it could not be legally passed by reason of Section 233 of the Code of Criminal Procedure.

2. It appears that the accused was convicted of two acts of extortion committed within a short period of each other against two different persons. It has always been the practice, so far as we are aware, in all the Courts of Bengal to try such offences up to the limit of three under Section 234, Criminal Procedure Code, in one trial. But we have been confronted by the learned Vakil who appears in support of the Rule with a ruling in Queen Empress v. Murari 4 A. 147 and with a ruling Nando Kumar Sirkar v. The Emperor 11 C.W.N. 1128 : 6 Cr. L.J. 321. As regards the Allahabad case, it has been in effect dissented from both by this Court in Manu Miya v. The Empress 9 C. 371 : 11 C.L.R. 52 by the Allahabad Court in the Full Bench case of Queen Empress v. Juala Prasad 7 A. 174 and by the Bombay Court in an unreported case Queen-Empress v. Dhondi(1887) Rat. Un. Cr. C. 331 decided on the 30th June 1887.

3. The wording of the law seems to be absolutely clear. There can be no reason “why an offence committed by an accused person within twelve months against a series of persons not exceeding three of a similar nature should not be tried at one trial and that is what clearly distinguishes the recent case of Nanda Kumar Sirkarr. Emperor 11 C.W.N. 1128 : 6 Cr. L.J. 321 to which we have just referred from the present case. In that case there were three different complaints by three shop-keepers against a number of persons who joined in a riot over the sale of foreign goods and, it was alleged, looted their shops. It is clear that the ratio decidendi in that case was, as the Court pointed out, that of the numerous persons engaged in the riot, some may have been employed in looting one shop and some may have been employed in looting another and, on the separate complaints of three different people, it is impossible that they could have a fair trial and the result of each be distinguished. It is, however, quite possible that had the case been taken up by the police, a single charge of rioting with the common object of looting shops might very well have been framed and tried and there is nothing in the decision against that. But there is one passage in the judgment which we confess we do not quite understand, which does not appear to have formed part of the ratio decidendi in that case.

4. The learned Vakil who has appeared in support of the conviction has relied on Section 234 of the Code as supporting the procedure adopted by the Magistrate, but that section evidently refers to different acts done by the same individuals or same sets of individuals as against the same complainant or. complainants so connected with each other that they may in law be taken to be one person.” No w, this appears to be contrary to the previous ruling of this Court which we have referred to and the case Manu Miya v. The Empress 9 C. 371 : 11 C.L.R. 52 was not before the Bench when they made this remark. If it had been a matter which was necessary for the decision of the case then before them, we should have felt it our duty to refer the matter to a Full Bench; but we find that the reasons given for holding that there was a misjoinder in the case of Nanda Kumar Sirkar v. Emperor 11 C.W.N. 1128 : 6 Cr. L.J. 321 are reasons with which we are wholly in agreement, with the exception of this one dictum which may be regarded as an obiter because, otherwise, the case of Manu Miya v. The Empress 9 C. 371 : 11 C.L.R. 52 would have been referred to a Full Bench by the learned Judges. It is true that the decision in Manu Miya v. The Empress 9 C. 371 : 11 C.L.R. 52 was passed under Act X of 1872, but the wording of Section 453 and Section 234 as regards offences of the same kind are exactly the same in both Acts and the only difference is in the definition of offences of the same kind, the Code of 1872 having included alternative charges up to any number which have now been excluded by the more rigid wording of Section 234. That is the reason why four charges were allowed in the case of Manu Miya, The Empress 9 C. 371 : 11 C.L.R. 52 two of house-breaking and two of theft from the same houses. That, under the present Code, would be irregular. But that is not the question. The question before us is whether the two charges of house-breaking could be tried together and for that, the decision is still fully binding on us. This view being supported by the views taken by the Allahabad and Bombay Courts, we discharge the Rule.

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