Emperor v. Sejmal Poonamchand

Crump, J.:—

Three points were suggested by Mr. Little on behalf of the accused as arising for determination in this case. Briefly they are as follows:

(1) Were the accused properly charged and tried together?

(2) Could accused No. 1 be convicted of two offences with reference to two false statements made in the course of one and the same deposition?

(3) Were the accused properly convicted on the merits?

Upon the first point the learned Judges who formed the Divisional Bench have differed. On the second point there is no expressed difference of opinion, for Shah, J. has refrained from answering the question. The third point has not been dealt with at all. This being so I have heard arguments on the first point only, for if I agree with the view expressed by Shah, J., the other points will not arise. If, however, I hold that there is no fundamental error in the trial the whole case is open to me, so at least I understand section 429 of the Code of Criminal Procedure. I would, however, with all deference, remark that the course which has been followed in this case is likely to lead to inconvenient results. I am not aware of any previous case where a point of difference has been referred under section 429 where such difference does not necessarily involve conflicting decisions as to the disposal of the whole case.

The rule applicable here is contained in section 239(d) of the Code of Criminal Procedure. I would apply this clause rather than clause (a) for the words “the same offence” in clause (a) appear to me to indicate the same physical act of crime. But for the purposes of the present case it makes no difference whether the matter falls under section 239(a) or 239(d). If the two acts of giving false evidence were committed “in the course of the same transaction” these two persons could be charged and tried jointly. The Legislature, though more than once invited to do so, has studiously, and I think, speaking with all respect, wisely refrained from attempting a definition of the phrase “in the course of the same transaction”. Each case must (in my opinion) be considered on its merits, and, therefore, it is peculiarly true here that no case can be an authority except upon its own facts. The test, I take it is whether the two persons concerned are engaged in one transaction, and to determine that it is necessary to regard the facts from the point of view of those two persons. If they are animated by a common purpose, and there is continuity in their action, then surely there is one transaction so far as they are concerned. It may even be that community of purpose is not necessary, but I speak strictly with reference to the alleged facts of this case. Put shortly, those facts are as follows:—

Accused No. 1 was the plaintiff in a suit on a pronote executed by one Awte. The defendant Awte pleaded that Rs. 750 had been deducted as interest at the time of execution. Both the accused swore that Rs. 750 had not been deducted as interest. It has been found that the evidence so given was untrue to their knowledge. The Magistrate has found that the two accused were partners in this transaction, and it is at least conceded that accused No. 2 was interested in the sense that he had advanced part of the consideration to accused No. 1. Both the learned Judges assume for the purposes of this question that there was a common purpose in pursuance of which each of these persons gave false evidence. It is no doubt true that each act of giving false evidence is the act of the persons giving that evidence, and therefore the transaction of that person, but it does not (in my opinion) follow that there is not a major transaction, so to speak, embracing these two minor transactions. If there was a common purpose to make out a false claim so far as concerns the sum of Rs. 750, then it seems to me that from the point of view of these two persons there was one transaction.

If the reported cases are examined they do not (in my opinion) suffice to establish as an universal rule that in no case can two persons each of whom has given false evidence be jointly charged and tried for those offences. Reg. v. Bhavanishankar Haribhai was decided in 1868. The Criminal Procedure Code of 1861 was then in force, and I cannot find in it any provision corresponding to section 239 of the present code. That provision first appears in section 458 of the Code of 1872, and the statutory provision if applicable overrides any earlier judicial decision. The case of King-Emperor v. Krishnarao was decided in 1902 when the Code of 1898 was in force. And section 239 of that code as it then stood is substantially reproduced by the Amending Acts of 1923. But I fail to find any universal rule laid down in that decision. The facts are not stated with sufficient fulness to make it possible to deduce any such rule and the language of the judgment does not indicate that any question arose there whether the offences were or were not committed “in the same transaction”. I cannot regard that case as binding upon me with reference to the facts here. What was in reality decided was that the facts of that case did not fall within the provision which now appears as section 239(b). The other cases cited turn strictly upon their own facts, and are thus distinguishable. In my opinion, therefore, there is no authority which can be invoked beyond the words of the Legislature, and applying those words to the facts found by the Magistrate I agree with Fawcett, J. that there is no fundamental illegality which vitiates the trial. I would only add that this conclusion is without prejudice to any opinion which I may form upon the merits of the case.

The matter will stand over for further hearing on two other points raised.

The case was then argued on merits.

Jinnah, instructed by Crawford, Bayley & Co., for the accused.

P.B Shingne, acting Government Pleader, for the Crown.

Crump, J.:—After hearing Mr. Jinnah on the two points reserved in my judgment of November 17—[though this is not an appeal I have allowed the merits to be fully argued.]—I can find no reason to suppose that the Magistrate has committed any error of law in arriving at his conclusions. This Court can, no doubt, in revision consider how far findings of fact are justified though in practice it is unusual to do so. It is enough to say that I have examined the record and that I feel that the Magistrate's findings of fact are in all probability correct. There as therefore no ground for interference.

As for the remaining point I am unable to see that it has any substance. A deposition is one transaction. Each lie (to put it shortly) told in a deposition is an offence. The case is thus covered by section 235(1) of the Code of Criminal Procedure. Section 71 of the Indian Penal Code was invoked but the case is not within that section at all. The first paragraph might at first sight seem to apply, but that could only be so if the whole deposition were an offence. It is no offence to make a deposition in Court. The offence, if any, is confined to any false statement made in the course of such deposition. The case in illustration (a) to the section is a different case. There the whole beating is an offence and each of the fifty strokes making up the whole is also an offence. With all deference I see no real analogy between this case and the case in illustration (a). Here the two statements are as to two separate and unconnected matters, and, in such a case at least, I see no reason why an accused person cannot be tried and convicted for each offence.

The bail bonds must be cancelled and the accused remanded to custody to serve the unexpired period of their sentence.

Rule discharged.

R.R