1. These two applications in revision arise out of a single case for the prosecution resulting in the conviction of the six petitioners, four in the one and two in the other, who have been convicted and sentenced by the Courts below under S. 379, Penal Code to nine month' rigorous imprisonment and under S. 353, Penal Code, to six months' rigorous imprisonment, no separate sentence being recorded in respect on the conviction under S. 143, Penal Code. The two sentences of imprisonment were directed to run concurrently.

2. The prosecution case, shortly stated, is that there had been a dispute between one Sital Singh on the one hand and some of the petitioners on the other in respect of about 40 bighas of cultivated land in village Kamalpur within the Police station Dhamdaha. Sital Singh had instituted a civil suit in respect of the property, and had prayed for appointment of a receiver in respect of the property. He had also obtained an order from the Court appointing a pleader of the Court, Babu Ram Narain Das Commissioner, to go to the spot, and take charge of and harvest the standing paddy crop on the entire area. He reached the spot on the afternoon of 12th January 1948, and started getting the standing paddy crop harvested. He could succeed in getting the standing paddy crop cut out in respect of about four to five bighas. As it became evening time, he directed the laborers, who had cut the crop to store it in a neutral Khalihan, belonging to Sk. Subedar in the same village for safe custody and thrashing; but the accused party led by the petitioner Parmanand Thakur, who is said to be a Socialist leader in that locality, resisted the removal of the crop, and used had abusive languages against the Commissioner, and even threatened him with use of force. Finding the attitude of the mob, consisting of the petitioners and many others, very threatening, the commissioner did not think it safe and advisable to persist in his attempt to get the cut paddy removed to the Khalihan of Sheikh Subedar. He left the crop in charge of a constable Mohammad Kazim Khan and Barka Besa, who were there on the spot in connection with an apprehended breach of the peace in that locality. On the morning of 13th January 1948, the petitioners came with a large mob, and began harvesting the paddy. The Commissioner sent a report of the Occurrence of the last evening and of the morning of 13th January, to the Sub-ordinate Judge, who did deputed him, as also to the Police station. On receiving the report, the Sub. Inspector of Dhamdaha Police station arrived at the spot at about 2 p.m on 13th. Seeing the Police Sub-Inspector arriving, the mob dispersed, taking away with them bulk of the paddy cut and leaving some standing paddy crop behind. On the report of the Commissioner, the Sub-Inspector drew up a first information report, and, after investigation, submitted charge sheet against the petitioners and nineteen others, in all twenty five persons, for trial under ss. 144, 145, 353 and 379, Penal Code.

3. At the trial, the prosecution examined a large number of witnesses including the public officers like the commissioner and the constables. The defence of the petitioners was a denial of the occurrence. The accused did not examine any witnesses on their behalf. The trial Court acquitted nineteen-accused persons on the ground that they had not been properly identified as the persons who were concerned in the crime. He convicted the petitioners, and sentenced them as stated above. The lower appellate Court only converted the conviction of some of the petitioners under S. 144 to one under S. 143, Penal Code. But that modification did not affect the substantive terms of imprisonment given to each one of these petitioners. In this Court, it has not been argued before me that the Commissioner did not go to the spot, or that he had not taken charge of the standing paddy crops, or even that he was not legally in possession. The only point argued in support of the application for revision is that the joint trial of the two substantive offences, under S. 353 and 379, Penal Code was illegal. It is, therefore, necessary to set out the two charges against the petitioners, namely, (1) that, on or about 12th January 1948 they assaulted Mr. R.N Das, the pleader commissioner (a public servant) in the execution of the duties as such public servant, and prevented him from discharging his official duties and that thereby they committed an offence under S. 353, Penal Code; and (2) that, on 13th January 1948, they committed theft of standing paddy crops from about 31 bighas of land, worth about three thousand rupees, from the possession of the Sub-Judge's Court, Purnea, (Title Suit No. 1 of 1948).

4. It is contended that these two charges, one in respect of the occurrence on 12th January and the other in respect of the occurrence on 13th January, could not have been legally joined and tried together. If this contention is well founded in law, it is manifest that the convictions under either of these two sections cannot be sustained. The answer to this contention depends upon the interpretation of S. 239 with particular reference to cl. (d) which authorizes the joint trial of “persons accused of different offences committed in the course of the same transaction.” On behalf of the petitioners, it has been contended that the aforesaid two offences could not be said to have been committed in the course of the same transaction, and that, as a matter of law and fact both, the occurrence on 12th January, had nothing to do with the occurrence on 13th January. On the other hand, the prosecution version is that the two occurrences were parts of the same transaction, and that a common purpose ran through both the incidents on the two dates aforesaid. The finding of both the Courts below is that these six petitioners were certainly present on both the occasions, and were concerned in offering resistance to the commissioner when he proposed to remove the paddy crops already out on 12th afternoon, and in removing the remaining portion of the standing crops except for a few bighas on the morning of 13th January. The Courts below have taken the view that these petitioners who were the ring-leaders of the mob, acted in concert in defiance of the commissioner, and prevented him from discharging his duties and ultimately removed the crops of which he had been commissioned by the Court to take charge. It is true that the two occurrences are separated by about twelve to fifteen hours; but the fact remains that the mob on both the occasions led by these petitioners, acted in the way they did with a view not only to obstructing the Commissioner in the discharge of his duties but also to preventing him from exercising his functions in respect of the standing crops. Reliance was placed upon a decision of a Division Bench of the Bombay High Court, in the case of Krishnaji Madhusudan…Accused v. Emperor, A.I.R (19) 1932 Bom. 277 : (33 Cr. L.J 619) in which Beaumont C.J has made the following observations:

“But the mere fact that there may have been a common purpose of that nature cannot make two perfectly distinct offences part of the same transaction. A mere common purpose does not constitute a transaction and in my opinion, there was no sufficient connexion between these two offences to justify their being tried together under S. 235 or S. 239(d).”

These observations were made with special reference to the facts of the case before the Court. In the case before their Lordships of the Bombay High Court, there were two distinct offences one of theft on 28th May 1931, in the house of the complainant, and the other the offence of breaking into the house of the complainant, and committing theft on 7th June 1931. In that case, the Magistrate had framed a single charge both under S. 380 and under S. 457, Penal Code, on the assumption that they were offences of the same kind, and therefore, a joint trial was permissible under Section 234 of the Cr PC. In the High Court, for the first time, the conviction was sought to be supported on the ground that the two offences had been committed by the accused persons in order to compel the complainant to quit his house. Broomafield J. who agreed with the Chief Justice, observed that the two incidents of the two dates, as aforesaid, could not reasonably be regarded as parts of the same transaction. Hence both their Lordships of the Bombay High Court did not treat the two incidents as parts of the same transaction but as two distinct and separate offences committed on two dates, separated by about ten days in between them. Reliance was also placed upon a decision of the Division Bench of this Court, in the case of Chintaman v. King-Emperor*, 24 Pat. 303 : (A.I.R (32) 1945 Pat. 388) to which I was a party. There also the facts were of an entirely different nature and Meredith J. (as he then was) made the following pertinent observations with respect to the question of the legality of the joinder of the two charges under Ss. 214 and 302, Penal Code:

“The prosecution has not sought to prove that there was any conspiracy between the different persons tried, that those who attempted to get the matter hushed up were acting in concert with Chintaman. He attempt has been made to prove any continuity of purpose as between them…..”

That would entirely distinguish the present case from the case then before their Lordships. The learned counsel for the petitioner also invited my attention to the decision of a Division Bench of this Court to the case of Gobinda Chandra v. Emperor, 5 Pat. L.J 11 : (A.I.R (7) 1920 Pat. 230; 21 Cr. L.J 161). In that case accused had seized the woman with a criminal intent when he was attacked by her husband, and aroused 2 and 3 thereupon appeared on the scene, and assaulted the husband. It was held in those circumstances, that, in the absence of proof that the three accused were acting for a common purpose in execution of a common design, a joint trial of accused 1 under S. 354 and of aroused 2 and 3 under S. 323, Penal Code was illegal. Their Lordships have made the following observations with reference to the evidence on the record in that case:

“There is no evidence on the record to suggest or prove that accused 2 and 3 were particips criminis with accused 1 in his acts or purpose relative to the assault which they committed upon Mt. Khiradmani.”

5. Though, in that case, their Lordships held the joint trial to be illegal, they adopted the following observations of their Lordships of the Bombay High Court in the case of Emperor v. Datto Hanmant, 30 Bom. 49 : (2 Cr. L.J 578) bearing on the construction of Section 239 of the Cr PC.

“According to its etymological and dictionary meaning, the word ‘transaction’ means carrying through' and suggests, we think, not necessarily proximity in time so much as continuity of action and purpose……

We think the foundation for the procedure in that section is the association of two persons concurring from start to finish to attain the same end.”

6. Their Lordships also adopted the following language used by a Division Bench of the Madras High Court in the case of Venkatadri v. Emperor, 33 Mad. 502 : (5 I.C 847):

“I think — and this seems to be the effect of the decisions — that at least in a certain class of cases — the present case is alleged to be within that category — community of purpose or design and continuity of action are essential elements of the connection necessary to link together different acts into one and the same transaction. In such case, the acts alleged to be connected with each other must have been done in pursuance of a particular end in view and as accessory thereto or perhaps as suggested by the circumstances in which the acts in pursuance of the original design, were done and in close proximity of time to those acts.”

7. Applying those tests to the facts of the present case, in my opinion, there is no doubt that, from start to finish, these petitioners were acting in pursuance of the common design to prevent the Commissioner from taking charge of the property and harvesting the crop, which he had been commissioned by the Court to do in a pending litigation between the parties. Hence, I would hold that the joint trial in this case was not illegal and that the two incidents were parts of the same transaction within the meaning of Section 239(d) of the Cr PC.

8. As that is the only point raised in support of the petitions — a point which was raised for the first time in this Court, which I have held to be without any substance — the applications must be dismissed, and the rules discharged.

9. If the petitioners are on bail they must surrender and serve the remaining portion of their sentence.

D.H

10. Rules discharged.