Imam, J.:— In these two appeals there are nine appellants, who have been sentenced to various terms of imprisonment for offences under Ss. 395, 225, 225B and 412, Penal Code, the details of which will be stated when the case of each appellant is considered. The Sessions Judge of Monghyr tried the appellants with the aid of assessors, who found some of the appellants guilty of the charges framed against them. According to the prosecution case, some time between 11 P.M on the night of 29th June 1943, and 1 A.M of 30th June 1943, a dacoity was committed in village Kasimpur, within the jurisdiction of police-station Khagaria, in the houses of Dip Narain Mahton and Dina Nath Mahton, the houses of these two persons being 500 yards apart. It is said that about 30 to 35 men first went to the house of Dip Narain Mahton, where they looted his valuables after breaking open the main door. Dip Narain, who was sleeping, managed to climb up on to a platform of bamboos in the room from which place he asserted he was able to identify the dacoits. On an alarm a number of villagers assembled and Tilo Sao Chaukidar came to the spot, where he set fire to a small thatched hut adjacent to Dip Narain's house. In consequence there was much light, and the villagers are said to have identified some of the dacoits as a result of it. Thereafter the dacoits went to the house of Dina Nath Mahton, who was sleeping with his bhagna Karoleshwari. The dacoits struck Kamleshwari with a bhala, and proceeded to loot Dina Nath's valuables. Thereafter the dacoits decamped with the booty. On 30th June 1943, Dip Narain Mahton, Dina Nath Mahton and Tilo Sao chaukidar proceeded to Khagaria police-station, three miles away, where Dip Narain lodged a first information report at 8 A.M Of the appellants, Hirday Singh was definitely named as one of the dacoits in that report. The Sub-Inspector of Khagaria after having recorded Dip Narain's statement proceeded to the village to investigate the case. There can be no doubt from the evidence of the Sub-Inspector and other evidence on the record that a dacoity took place in the houses of Dip Narain Mahton and Dina Nath Mahton. Indeed it was not seriously contended before us that there was no dacoity in the houses of these two men, but quite independent of that consideration I am fully satisfied, after an examination of the evidence, that in fact a dacoity was committed in the houses of these two men, and it is unnecessary for me to recapitulate the evidence witness by witness as to this.

2. While there was a dacoity in the houses of Dip Narain Mahton and Dina Nath Mahton at Kasimpur on the night of 29th June, it appears that Ramdhani chaukidar of Baburahi was fairly active on the evening of 29th June, as his suspicions were aroused on seeing the appellants Bhadai Singh, Hirday Singh and others talking together in a bamboo clump to the west of the village Sibchandpur. He had also seen one Tili Singh, who was convicted by the Sessions Judge but is not a party to these appeals, at the house of Bhadai Singh. Ramdhani chaukidar returned to Sabdalpur, at 7 P.M when he saw a collection of persons at the house of Bhadai Singh. Amongst them he recognised Bhadai Singh himself, Basudeo Singh, Sahadeo Singh, Pabirath Grope, Hirday Singh and one Barhamdeo Singh. Ramdhani chaukidar then returned to his own village, where he called out to his nephew Baso Dusadh chaukidar, and returned with him to Sabdalpur, somewhere about 11 P.M Ramdhani and Baso then went to the houses of the above-mentioned individuals, and found them absent. Ramdhani chaukidar then took the assistance of Sibdhari Dusadh chaukidar (P.W 4) and Rambhajju Kandu chaukidar (P.W 5), and proceeded to Sahebpur Kamal railway station, three miles away, from where he sent a wire through the Assistant Station Master to the Sub-Inspector of Ballia to the effect that the bad characters of his village were absent and had probably gone to commit dacoity. At that time Ramdhani suspected that the dacoity would take place at village Bishunpur. Ramdhani, Baso Dusadh, Sibdhari Dusadh and Eambhajju Kandu then went to village Kurha, and asked Sipahi Kandu and Kutahal Gope chaukidar of that place to accompany them in order to do picketing west of Acheychak and east of Kalyanpur dhala, as they anticipated that the dacoits would return by that route. Ramdhani, it appears, then went to village Acheychak, woke up a number of persons and sought their assistance in apprehending these bad characters who were absent from the village. About dawn, Ramdhani went to village Sabdalpur in order to see if the suspected persons had returned. He found that they had not yet returned. While he was in Sabdalpur he heard an outcry from the direction of the spot where the chaukidars were picketing. From the evidence it appears that the chaukidars who were picketing had seen some men coming towards Sabdalpur from the west. As Ramdhani approached the spot he met one Bhikari whom the chaukidar seized. Bhikari was, however, able to get away, as his brother one Lachhmi had come to his help in the meantime. In the meanwhile one Adua Singh and the appellants Basudeo and Sahdeo had been caught by the other chaukidars.

3. It is said that these men were carrying bundles containing clothes and ornaments. The arrested men and the chaukidars were then proceeding towards Sahebpur Kamal. After they had proceeded a short distance, the arrested men cried for help, upon which the appellants Bhadai Singh, Pabirat Gope, Eamkishun and others came armed with weapons, such as lathis and bhalas. They assaulted the chaukidars, and released the three arrested men. The bundles which had been taken possession of from the arrested men Basudeo and Sahdeo were taken by the chaukidars Baso Dusadh and Kutahal Gope to the house of one Dorik Singh of village Kalyanpur. The bundles were found subsequently to contain a large number of ornaments and clothes. Ramdhani chaukidar and Eambhajju chaukidar proceeded from Dorik Singh's house to Sahebpur Kamal railway station and as they approached the station they saw Tilo Singh running with a bundle and an earthen pot containing ghee. Jugeshwar Mahton (P.W 30) caught this individual Tilo near the railway crossing. Tilo was then taken under arrest to Sahebpur Kamal railway station. The Assistant Sub-Inspector of police-station Ballia, Naresh Jha, arrived at Sahebpur Kamal railway station at 8 A.M, when he took charge of Tilo Singh and the articles seized from him. It would appear that this Assistant Sub-Inspector had reached the spot as a result of a telephonic message being sent to the police-station Ballia, which was received at 7 A.M, as will appear from the station diary entry (Ex. 8). According to the evidence of this Assistant Sub-Inspector, he recorded the statements of the chaukidars on that day. I have read the evidence of the chaukidars with special care to see that there was no scope for coming to any conclusion which would make one suppose that these witnesses were putting forward a concocted story. There can be no doubt whatever that the telegraphic and telephonic messages, which were sent from the railway station, make it clear that a dacoity was apprehended somewhere and according to the suspicions of the chaukidar perhaps at Bishunpur. The police had accordingly despatched a force to Bishunpur, but they returned at 6 A.M to state that nothing had taken place there. On receiving the message at 7 A.M the Sub-Inspector of Ballia sent this Assistant Sub-Inspector and a force. There is no reason to doubt the station diary entries in this respect, nor is there any ground for holding that the telegraphic and telephonic messages were bogus. When the Assistant Sub-Inspector arrived, he in fact found Tilo Singh under arrest with a bundle and a pot of ghee recovered from his person. He proceeded to record the statements of the chaukidars. I have not the slightest hesitation in accepting the evidence of the chaukidars that they were looking out for certain persons suspected to have gone out for committing dacoity, and that while they waited to intercept them on their return they arrested certain individuals who were subsequently rescued from their custody. It is noteworthy that while these chaukidars were performing their duty near Sabdalpur they had not the slightest idea that anything like a dacoity was being committed at Kasimpur in the jurisdiction of Khagaria police-station. It was only when Tilo Singh was arrested near Sahebpur Kamal railway station that it emerged for the first time that a dacoity had been committed at Kasimpur. The Sub-Inspector of Khagaria, who had proceeded to Kasimpur for investigation of the dacoity, had no information as to what was happening at Sabdalpur, until at a subsequent stage in the investigation when he received the statements of the chaukidars recorded by the Assistant Sub-Inspector of Ballia. It is a significant circumstance in this case that the police authorities of Khagaria and Ballia were conducting their investigation quite independent of each other and in ignorance of what was happening in the course of their respective investigations at the earlier stages. The Assistant Sub-Inspector of Ballia proceeded to the house of Dorik Singh (P.W 8) from where he recovered the two bundles said to be in the possession of Sahdeo and Basudeo. According to his evidence, these bundles contained ornaments, and he specifically refers in his evidence to the exhibits while stating that they were in these bundles. He, however, mixed up the contents of the two bundles, and prepared a seizure fist. Subsequently the house of one Baijnath Singh was searched, and a large number of ornaments were recovered from there. Baijnath Singh was discharged by the committing Magistrate, and we are not concerned now with the question as to what were the ornaments which were recovered from his house. It seems, however, that there was no opportunity then, as far as one can gather from the evidence, for the police authorities of Ballia to consult the police authorities of Khagaria as to how the investigation should proceed, nor is there any indication that the police authorities of Khagaria were in collusion with the police authorities of Ballia. This is to be borne in mind in view of the statements made on behalf of Bhola Singh.

4. An important point of law has been raised by Mr. Baldeva Sahay on behalf of the appellants to the effect that the trial was invalid owing to misjoinder of charges and misjoinder of trials. He urged that the incident near Sabdalpur, in which certain persons participated in rescuing Sahdeo and Basudeo from the custody of the chaukidars, was quite independent of the dacoity committed in the houses of Dip Narain Mahton and Dina Nath Mahton in village Kasimpur. He emphasised that the dacoity at Kasimpur was a completed transaction the moment the dacoits made good their escape from the village. In any subsequent incident, if any of the appellants participated, it could not reasonably be said that incident formed part of the same transaction as the dacoity at Kasimpur. He further drew attention to the evidence in the case that one Tilo Singh, who had been tried along with the appellants, was arrested by the chaukidars near Sahebpur Kamal railway station, who made a statement to the chaukidars to the effect that the articles in his possession were his share of the booty taken from village Kasimpur. He argued that this clearly indicated that after the dacoity the dacoits had divided the loot, and so far as they were concerned the incident of the dacoity was at an end. It could not fairly be said that Tilo Singh could be tried along with the others for the offences under S. 225, Penal Code. As to what is the same transaction must depend upon the facts and the circumstances of each particular case. This proposition is recognized throughout the Courts in India. As to whether persons can be tried together at one trial and as to whether different charges can be framed against accused persons in one trial depends upon the accusation made by the prosecution, and not the result of the prosecution. It has been so held in 65 I.A 1581 by their Lordships of the Judicial Committee. All the accused persons at the trial before the Court below were charged with the offence of dacoity at the houses of Dip Narain Mahton and Dina Nath Mahton in village Kasimpur. This was the accusation. It is immaterial that some of the accused persons were acquitted of that charge. The accusation, therefore; was that the accused on trial had acted in concert when they committed dacoity at village Kasimpur. Indeed, on the evidence of Ramdhani chaukidar it is abundantly clear that some of the appellants were seen by him in suspicious circumstances and association together before the dacoity, and it would be a safe inference to draw from their subsequent absence from their homes and their return towards Sabdalpur early in the morning, that these men had been not only acting in concert but had been associating from the time they started towards Kasimpur until they finally dispersed after rescuing Basudeo and Sahdeo from the custody of the chaukidars. The following passage from the judgment of the Judicial Committee of the Privy Council in 65 I.A 158 I would like to quote. Their Lordships said:

“Whatever scope of connotation may be included in the words ‘the same transaction’, it is enough for the present case to say that if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators), these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concern and agreement which constitute the conspiracy serve to unify the acts done in pursuance of it.”

5. There can be no doubt that when a body of persons proceeds to commit a dacoity it must be the result of a conspiracy, and their action though individual in many respects is the result of their pre-determined intention. In other words, the whole body of men out to commit dacoity is acting in concert, though its members may individually be committing various overt acts. I think it would not be an unfair supposition to say that when men decide to commit dacoity they not only decide to break into another man's house and deprive him of his goods but also to carry away successfully the same and, if necessary, to prevent their own capture and recovery of the property be looted. A decision of this Court in A.I.R 44 Patna 1930 Pat. 1592 was placed before us, where it was held that persons uprooting crops of a field when captured by the owners cannot be jointly tried along with persons who rescued them from the custody of the owners who had arrested the thieves, unless there was evidence that the rescuers had been in collusion with the thieves and had stood by with the object of effecting the rescue. On the facts of that case there can be no doubt that this Court upheld the objection as to misjoinder, but I would none the less quote a certain passage from the judgment. Their Lordships say:

“Had there been evidence that the rescuers had been in collusion with the thieves committing the theft and had stood by with the object of effecting a rescue, then there would have been such a connexion between the two sets of offences as to make them one and the same transaction, and that would have justified the trial of the two sets of offences together; but in this case there is no trace of any such connexion.”

6. The evidence on the record in these appeals clearly shows that the rescuers came from the north-west, they had no bundles but they were following the men whom the chaukidars had arrested. On the facts of the case before us there is ample justification to come to the finding that there is evidence of connexion between the two incidents. Many of the persons who have been charged with the rescue of the arrested men were themselves charged with having committed the offence of dacoity, and it is also significant that many of them were seen in the house of Bhadai Singh previous to the dacoity, absent from their homes at night, and then seen in close proximity to one another in the morning when returning to Sabdalpur. According to the evidence, the arrested men had in their possession ornaments which Dina Nath and Dip Narain identified as ornaments belonging to them which had been stolen at the dacoity. In addition, many of these men had been identified at the dacoity itself. The circumstantial evidence from all this leads to the conclusion that these men had not only intended to commit dacoity but to dispose of them effectively and prevent themselves being captured. There is a decision of the Bombay High Court in 4 Bom. L.R 789,3 which I would refer to. In that case a gang of men proceeded to a certain village in order to commit dacoity, but as it was still daylight they concealed themselves in a secluded nala, and while so concealing themselves a woman came there to collect some vegetable. These men fearing detection fell upon the unfortunate woman, and stoned her to death. Thereafter they committed the dacoity. The Sessions Judge tried some of the accused for the murder of the woman, and all the accused for the dacoity at one trial. The objection as to misjoinder was negatived by the Bombay High Court, and the trial was held to be a valid one. It was argued by Mr. Baldeva Sahay, however, that the act of murder in the Bombay case was committed by the gang while on their way to commit a dacoity and, therefore, it might well be said that it formed part of the same transaction, for it was an act which was in furtherance of the common intention to commit dacoity, as the gang did not wish the woman to give them away. I would, however, point out this significant passage in the judgment of the Bombay High Court, where their Lordships said:

“It would be exactly the same thing if, after having secured their plunder in committing dacoity, they were encountered by any resistance in making their escape with the stolen property and in order to overcome such resistance and to carry away the stolen property committed murder for that end.”

7. In other words, as I understand this passage, those who would be committing murder when the dacoits were effecting their escape with the stolen property in order to overcome any resistance in carrying away the stolen property, could be tried along with those who had committed the dacoity. It seems to me that the fact that Sahdeo and Basudeo were arrested near Sabdalpur, nearly seven miles away from Kasimpur, is quite beside the point. It is not the distance nor the proximity of time which is so essential in order to consider what is “the same transaction,” as the continuity of action and purpose. It is quite obvious that the dacoits were returning from the scene of dacoity, and they resisted the attempt made by the chaukidars to take any one of them with the stolen property on them, and I think such an act must be regarded as one which was in furtherance of the purpose of the dacoits, namely, effectively to carry away the looted property and escape arrest. Another case, which has been referred to with approval not only in this Court but also in the Privy Council is 30 Bom. 49.4 This was a case of misappropriation of money of a trust fund, but their Lordships of the Bombay High Court have considered the word “transaction” and have held that with reference to S. 215, (sic. S. 235?)

“the phrase is used in a connection which implies that there may be a series of acts—illust. (f) to that section indicates that the successive acts may be separated by an interval of time and that the essential is the progressive action, all pointing to the same object. In S. 239, therefore, a series of acts separated by intervals of time are not, we think, excluded, provided that those jointly tried have throughout been directed to one and the same objective. If the accused started together for the same goal this suffices to justify the joint trial, even if incidentally one of those jointly tried has done an act for which the other may not be responsible.”

8. They further went on to say:

“that the accused carried out their scheme by successive acts done at intervals, alternately taking the benefits, does not prevent the unity of the project from constituting the series of acts one transaction i.e, the carrying through of the same object which both had from the first act to the last.”

9. And I would hold on the facts of the case before us that from the first act to the last, namely, the journey to the place of dacoity and to make the expedition successful it was essential for the miscreants to get away with the looted property and escape detection. I think in the circumstances one would be justified in holding that the incident of the rescue near village Sabdalpur was part of the same transaction as the dacoity at Kasimpur. The entire circumstances indicate continuity at action and purpose of the dacoits. No one was tried at this trial who was not alleged to have been amongst the dacoits. It is further to be remembered that although the accused would be entitled to raise any legal point as to misjoinder and this Court would have to give effect to it if valid still in this case it seems to me that even if no charges for the rescue incident had been framed the evidence led in the case with reference to that incident would have been most relevant as evidence of corroboration of the evidence of identification at the dacoity itself. It would have been also relevant as evidence of conduct and circumstantial evidence from which certain inferences could fairly be drawn against the accused persons. In any event, this case cannot be said to be one in which any prejudice whatever has been caused to the accused by the joinder of the charges. Having regard to the view which I take it would be unnecessary for me to refer to the recent decisions of this Court in A.I.R 1940 Pat. 4995 and 24 Pat. 303,6 as I am satisfied that on the facts this case is distinguishable from the facts reported in these decisions. I can find nowhere any suggestion in these decisions which could be said to prohibit one from coming to the conclusion on the facts of a particular case as to what is and what is not the same transaction. I would accordingly hold that the objection as to misjoinder is not valid, and that there has been no breach of the provisions of Sections 235 and 239 of the Cr PC. Mr. Mukherjee also advanced a point of law. He urged that if it was found that Sahdeo and Basudeo had in fact no stolen properties on them, then the chaukidars had no authority to arrest them and consequently their rescue could not be said to be a rescue from lawful custody. Section 27 of the Village Administration Act, cl. (d) provides that

“a chaukidar shall arrest any person in whose possession anything is found which may reasonably be suspected to be stolen property, or who may reasonably be suspected of having committed an offence with reference to such thing.”

10. It will be observed that this section does not state that in fact stolen property must be found in the possession of a person before he can be arrested by a chaukidar. What it requires is that any person found in possession of anything which may reasonably be suspected to be stolen property, or a person who may reasonably be suspected of having committed an offence with reference to such thing is liable to be arrested by a chaukidar. Can any one doubt in this case that Ramdhani chaukidar and his companions, the other chaukidars, were all acting with the fullest convictions in their minds that a dacoity was about to be committed that night owing to the absence of these men suspected to be bad characters from their homes? The chaukidars went out of their way to give reasonable warning in the village and picket the road leading into the village. When they saw men coming with bundles, the very men whom they suspected to be out for committing a dacoity, I think it was reasonable for these chaukidars to suspect that they were in possession of stolen property. Furthermore the two victims of the dacoity, Dip Narain and Dina Nath, both have identified some of the properties, which were recovered from the bundles in the possession of Basudeo and Sahdeo, to be articles taken away by the dacoits from their houses. I am satisfied not only that it was reasonable for the chaukidars to suspect that these men were in possession of stolen property, but I would go further in saving that I see no justifiable ground for rejecting the evidence of Dip Narain and Dina Nath that some of the ornaments recovered from the bundles were their property. I must conclude, therefore, that the chaukidars acted fully within the powers given to them under Section 27 of the Village Administration Act, and that the arrest was valid and that the rescue was from lawful custody.

11. In taking up the cases of the individual accused, it is necessary to state that appellants Bhola Singh and Bhadai Singh were represented by Mr. Baldeva Sahay, and appellants Sahdeo Singh and Basudeo Singh were represented by Mr. K.K Sinha, and the rest of the appellants were represented by Mr. M.K Mukherjee. (His Lordship then considered the individual cases of the accused and concluded.) In the net result, the appeal of Pirangi Singh, Ramkishun Gope and Pabirat Gope is allowed, and they are acquitted. The appeals of the rest of the appellants are dismissed.

Meredith, J.:— I agree. Upon the question of misjoinder I am of opinion that the present case can be distinguished from Nathu Chaudhury v. Emperor (A.I.R 1940 Pat. 499) and Chintaman v. King-Emperor* (24 Pat. 303), to which decisions I was a party. The determining factor in cases of this kind in deciding whether the different offences committed by different persons all form part of the same transaction is, I think, the presence of concert and continuity of action. In the cases to which I have referred it was held upon the facts that no concert had been established between the different offenders, and no continuity of purpose as between the different offences. In the present instance, however, the facts alleged by the prosecution involve, to my mind, both concert and continuity of action, and, therefore, Section 239(d) of the Cr PC, is applicable. The carrying out of a successful dacoity, that is to say, successful not only in securing the loot but carrying it off, inevitably involves previous concert and planning; and continuity of action in carrying out the joint purpose can be said to continue until the stolen property has been successfully got away to the place of concealment. In the case before us the dacoits were intercepted while still returning home with their booty. Some were arrested with the booty, and they were rescued, not by friends or sympathisers from their village, but by others of their number, who were returning behind them and who also had not yet reached home. In my judgment, from the time they set out on their expedition until they get safely home with their booty, everything done by the dacoits, which is directed towards the successful completion of the crime, the getting away of the culprits, and the concealment of the booty, may fairly be described as part of the same transaction. Suppose, as sometimes happens, one of the dacoits had been knocked down and captured by the villagers at the scene of the dacoity and some of his fleeing comrades had turned back and rescued him and carried him off with them, could any one maintain that was not part of the same transaction? Such a case can be distinguished from a case like the present, where the arrest and rescue were effected nearer home, only in degree and not in kind. Had the rescue been not by some of the dacoits themselves but by other persons, acting independently, the matter would have been different. That is where the present case is distinguishable from such cases as Gobind Koeri v. Emperor (29 Cal. 385)7 and Raghu Dusadh v. Emperor (A.I.R 1930 Pat. 159).

12. But, it is said, how can the case of Tilo Singh who was arrested independently at a different place while making off separately, and who could not have known anything, about the arrest and rescue, possibly be tried together with the cases of the dacoits who took part in the rescue? There is no room for concert and continuity of action between him and them. The argument, I think, misconceives the meaning of S. 239(d). That provision enables persons to be charged and tried together who are accused of different offences committed in the course of the same transaction. If circumstances are present which support a finding that the offences were committed in the course of the same transaction, then the circumstance that some of the first offenders may have become completely dissociated from the others before the subsequent offence is clearly irrelevant upon the wording of the section. What we have to ask ourselves is merely whether there was continuity of purpose and action on the part of the dacoits who took part in the dacoity and in the rescue of their comrades on the way home. If once this is found, then the fact that he took part in the dacoity will bring in a man like Tilo Singh irrespective of what he himself may have subsequently done. The section, of course, does not make him in any way responsible for the rescue, but it does make him liable to be jointly tried with the rescuers. The question is not whether Tilo Singh was connected with the rest by any continuity of purpose at the time of the rescue, but merely whether the rescue and the dacoity were part of the same transaction. In other words, was the rescue in furtherance of the intention with which the dacoits set out? In Emperor v. Datto Hanmant (30 Bom. 49) it was observed:

“If the accused started together for the same goal this suffices to justify the joint trial even if incidentally one of those jointly tried has done an act for which the others may not be responsible.”

13. This decision has been approved by the Privy Council in Babulal Choukhani v. Emperor (65 I.A 158).

14. Had I felt compelled to hold that the present joint trial was vitiated by misjoinder I would have done so with the utmost reluctance, because there has been no question of prejudice of any sort. Had the charges under S. 225 not been tried at this trial, the evidence in connexion with the arrest and rescue would still have been admissible, and highly relevant as corroborating the evidence of identification of the dacoits. Indeed it has not been argued before us that there was any possibility of prejudice, or that the trial was in any way unfair. It seems to me highly anomalous that where a lengthy and expensive trial has taken place and has been admittedly fair in every way, the whole should have to go for nothing and the parties and witnesses become involved in the expense and harassment of a new trial merely because of a formal defect of misjoinder. That, however, is the manner in which the Courts in India have interpreted the Privy Council decision in Subrahmania Iyer's case (28 I.A 257).8 I for one hope, in view of the observations of the Privy Council at p. 174 in Babulal Ghoukhani's case (65 I.A 158), that when a suitable occasion arises the Privy Council will explain Subrahmania's case for us; but, unless and until that happens, we are undoubtedly bound by the interpretation of that decision, cursus curieæ in this country having become established.

R.K/V.S

15. Order accordingly.