1. The three accused before us as petitioners in the present application were respectively charged with offences under S. 354, I.P.C, and under S. 323, I.P.C Accused 1 was the only accused charged with the commission of an alleged offence under S. 354, and accused 2 and 3 were charged with the commission of an offence under S. 323, I.P.C

2. Both offences are alleged to have taken place on 6th April, 1919 at or between the hours of 7 and 8 p.m Shortly summarized, the evidence in the case appears to be as follows: Accused 1 entertained sexual designs on a lady called Khiradmani, who was the wife of the complainant; that on the evening in question, seeing this lady passing through her garden not far from the fence which separated her house from that of accused 1, accused 1 seized her and endavoured to forcibly retain her in his custody for an immoral purpose. The woman resisted, and called out for assistance. The incident took place not far from the house of Mt. Khiradmani herself; and accordingly her husband and her aunt, bearing the cry of help uttered by Mt. Khiradmani, immediately came to her assistance.

3. Now up to this period of time accused 2 and 3 were not in any way connected with accused 1. There is no evidence on the record to suggest or prove that accused 2 and 3 were particeps criminis with accused 1 in his acts or purpose relative to the assault which he committed upon Mt. Khiradmani.

4. Mt. Khiradmani's husband having appeared upon the scene he immediately attacked accused 1; and apparently, as the complainant seized accused 1, and got into hand grips with him, accused 2 and 3 appeared for the first time upon the scene. Accused 2 and 3 are the servants of accused 1, and evidently their intention was to free their master from the assault which was then being committed upon him by the complainant.

5. These are the only facts which it is necessary to state to dispose of the legal matter of objection taken before us with regard to the validity of the conviction of the accused.

6. The three accused were all tried jointly upon joint charges. One charge was only referable to accused 1, and the other charge was referable against accused 2 and 3 jointly.

7. The point taken on behalf of the petitioners is that in this case the law does not justify or permit a joint ferial of accused 2 and 3 with accused 1, because it is alleged that the respective offences with which the accused were charged were not offences arising out of the same or in the course of the same transaction.

8. The general law as do the trial of accused persons is embodied in Section 233 of the Cr PC, and S. 233 provides that

“for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in the subsequent sections.”

9. Such being the general law, the exceptions that follow must be strictly construed so as not to defeat the right of independent trial conferred by the general law.

10. Now amongst the exceptions to the general rule laid down in Section 233 of the Cr PC, is the class of exception provided by S. 239.

11. Section 235 is very much akin in phraseology with S. 239. S. 239 appears to be wider in scope than S. 235; but in the main the underlying principle and intention governing these sections seems to be common, S. 239 provides that

“when more persons than one are accused of the same offence or of different offences committed in the same transatcion,……they may be charged and tried together or separately as the Court thinks fit.”

12. If accused persons have been wrongly tried together in respect of offences which cannot be jointly tried together legally in point of law, the conviction so obtained against them is illegal and void and cannot stand. It is not a mere irregularity; it is a question of substance, and not of form.

13. The ruling of their Lordships of the Privy Council has laid the contest regarding this question at rest; and it is not open now to debate or discussion notwithstanding the earlier decisions in the Calcutta High Court.

14. What we have to consider in the present case is whether the offence charged as against accused 2 and 3 was an offence arising out of the “same transaction” in respect of the main offence charged against accused 1; if not, then the right of joint trial did not arise, and the trial would be illegal.

15. It is conceivable that if persons were tried together, who ought not to have been so tried, that prejudice might accrue to an accused person which would be contrary to the spirit of fair trial.

16. Everything depends on the construction of S. 239, upon the meaning and interpretation to be attributed to the words “in the same transaction,” or “in the course of the same transaction,” as used in the illustrations to S. 239.

17. The learned Assistant Government Advocate contends that one and the same transaction means, as I gather, any state of circumstances that may exist, whereby one crime may have been committed which in some way may directly or indirectly be connected with another; that design and purpose do not form an essential ingredient in considering whether the transaction out of which two crimes may have been committed as a test and criterion for ascertaining if the several crimes so committed arose out of the same transaction. The authorities on the construction of S. 239 and its cognate sections in this chapter of the Code of Criminal Procedure leave one under very little doubt as to the interpretation to be given to S. 239.

18. The cases mainly relied upon are Emperor v. Datto Hanmant(3).

19. Out of these three cases I think the law as to the construction of S. 239 is best enunciated by the decision of the learned Judges in Emperor v. Datto Hanmant Shahapurkar. The learned Judges says at p. 54 of the report as follows:

“The word ‘transaction’ is unfortunately not defined in the Code and the meaning to be attached to it must be gathered from the context in which it occurs in various sections and illustrations.”

“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. The same metaphor implied by that word is continued in illustrations where the phrase used is in the course of the same transaction. In S. 215, the phrase is used in a connexion which implies that there may be a series of acts. Illus (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.”

“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.”

20. A brief quotation may also be made from Chorag udi Venkatadri v. Emperor from the judgment of the learned Judge who delivered the judgment of the Court:

“Now what is the nature of the connexion contemplated between different acts which would bind them into the ‘same transaction’? The idea conveyed by the words ‘same transaction’ seems to be obvious enough and it may be doubted whether it can be compendiously expressed in simpler and clearer language.”

“I think and this seems to be the effect of the decisions — that at least in a certain class of eases—the present case is alleged to be within that category, community of purpose or design and continuity of action are essential elements of the connexion necessary to link together different acts into one and the same transaction. In such cases 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.”

21. Many other decisions to like effect might be cited from the rulings of the Calcutta High Court. It is needless to refer to them, because speaking generally they all conform in principle with the authorities cited above.

22. In our opinion the several authorities already referred to lay down with accuracy and precision the correct legal principle to be applied in interpreting and construing Section 239 of the Cr PC, and accordingly we apply the principle deducible from the authorities cited to the facts of the case now before us.

23. It cannot be said on the evidence in this case to which I have already referred that there was any continuity of action or purpose between the act or acts committed by accused 2 and 3 and the main principal act committed by accused 1. If the Crown had been able show by evidence some association between accused 1 and accused 2 and 3, acting for a common purpose in execution of a common design between the three accused, then I think the charges against the respective accused might have been jointly triad and might have been disposed of together. But inasmuch as no such evidence was given, it appears to us on the true interpretation of the law that the accused persons in this case, the petitioner before us, have not been tried in accordance with the law, and that their joint trial was illegal, and consequently it becomes our duty to set aside the conviction of all the accused as recorded, by the learned Sessions Judge of Cuttack.

24. The learned Judge did not take into his consideration the question of separate trial of the accused; the accused never took the point before the learned Judge, and of course he is in no wise to blame; but in our opinion the omission of the accused to urge the illegality of their joint trial before the learned Sessions Judge does not debar them from asserting such right before us here now in revision.

25. Accordingly we set aside the conviction of accused 1, 2 and 3 and direct that they be separately retried on the charges which have been separately preferred against them.

V.S/R.K

26. Retrial ordered.