Bennett, J.:— The three petitioners in these revisions, Awadh Singh, Muso Singh and Ramkhelawan Singh were tried jointly with two other persons, Ramgulam Singh and Misri Kahar, by Mr. H.N Singh, a Magistrate of the First Class, of Monghyr, upon two charges, the first under section 420/34 and the second under section 366/34 of the Penal Code. The learned Magistrate acquitted Ramgulam Singh and Misri Kahar but convicted the three petitioners upon both the charges, and upon the conviction under section 420/34 sentenced Muso Singh to two years' rigorous imprisonment and to pay a fine of Rs. 500 or in default to rigorous imprisonment for five months, and Awadh Singh and Ramkhelawan Singh to one year's rigorous imprisonment each and to pay a fine of Rs. 300 each, or in default three months' rigorous imprisonment each. The learned Magistrate said that he did not deem it necessary to pass any separate sentence under section 366/34.
On appeal the learned Sessions Judge affirmed the convictions and sentences under section 420/34 but set aside the convictions under section 366/34, upon the ground that the charge under section 366 is within the exclusive jurisdiction of the Court of Session.
The case for the prosecution was as follows: The complainant, Badri Singh, is a resident of village Kajur, police-station Kari of the district of Gaya. The petitioners Muso Singh and Ramkhelawan Singh are residents of village Jaipur, out-post Lakhiserai, district Monghyr, and the appellant Awadh Singh is a resident of village Hardhanbigha, said to be adjacent to Jaitpur. The nanihal of petitioner Awadh Singh is in the complainant's village. It was alleged that the complainant, who is about 48 years of age, was anxious to get married and that a few days, before the occurrence, Awadh Singh, Muso Singh and Ramkhelawan Singh came to the complainant's village and arranged that the daughter of the petitioner Muso Singh should be married to the complainant on payment of Rs. 2,000, that subsequently the complainant sent Chhedi Hajam to the petitioner Muso Singh to fix the date of the marriage, that this having been arranged the complainant went to Burhee with a party consisting of Bano Singh, Machur Singh, Chando Singh and others, that Muso and Awadh came to the Dharmashala at Burhee and suggested that the marriage should be performed in an open field, that the complainant and his party objected and it was then arranged that the marriage should take place, that it did take place that evening in the Thakurbari of Tulsi Das with a girl of thirteen years of age in the presence of the three petitioners and the members of the Barat, that subsequently the complainant gave Rs. 2,000 to Muso Singh at the railway-station at Burhee in the presence of the three petitioners and the members of the Barat, that shortly afterwards the complainant learned from one Palo Singh that the petitioner Muso Singh had no daughter of his own and that the girl in question was a Sonarin of Monghyr, that the complainant being a Brahmin felt he had been grossly deceived and cheated, and that after an unavailing search of the accused persons a first-information report was lodged on the next day by the complainant in the Burhee beat-house.
As the convictions under section 366/34 of the Penal Code have been set aside by the learned Sessions Judge, I do not need to go into the facts concerning the alleged kidnapping and identity of the girl. No point was taken before us that the learned Magistrate was not fully justified in finding, as he did, that the girl was not a daughter of the petitioner Muso Singh and was by caste a Sonarin.
In the fard-beyan attached to the first-information report which was made and signed by the complainant, the only mention of the petitioner Awadh Singh is that about a month previously he had come to the complainant's village in company with Muso Singh, Ramkhelawan Singh and Ramgulam Singh. At the trial the complainant having stated the fact of the petitioner Awadh's arrival at his village in company with Muso Singh, Ramkhelawan Singh and Ramgulam Singh, said that they gaye out that Muso Singh had a daughter whom he wanted to get married, that he sent Chhedi (p.w 4) to the petitioners Muso Singh and Awadh Singh to fix the date of the marriage and that Chhedi returned with a letter (Exhibit 1) fixing the date of the marriage. Rajo Singh (p.w 2) stated in general terms that Muso, Awadh, Ramkhelawan and Ramgulam came to the village and arranged to marry Muso's daughter to the complainant on payment of Rs. 2,000 and that at the complainant's request he wrote letters for the petitioner Awadh Singh and the petitioner Muso to fix a date for the marriage. In cross-examination he stated that during the negotiations the complainant talked with the petitioner Muso Singh and that he learnt later from the complainant that the price demanded for the girl was originally greater than Rs. 2,000. It seems to follow that this witness, although present with the complainant, did not himself hear the actual negotiations between the complainant and the petitioner Muso Singh. It would seem, therefore, not by any means impossible that the petitioner Awadh Singh was in the same position as this witness and also did not hear the actual detailed negotiations. Chhedi Hajam (p.w 4) stated that Badri Singh sent him with two letters to the petitioners Muso and Awadh Singh and that he got a reply from them jointly and brought it back and gave it to the complainant. The letter said to have been brought by Chhedi Hajam was produced and contains no mention of the petitioner Awadh Singh, and purports to emanate solely from the petitioner Muso Singh.
Two witnesses, Benares Singh (p.w 7) and Shvam Marandi (p.w 11), both members of the Barat, deposed that after their arrival at Burhee, Muso Singh and Awadh Kishore Singh came to the Dharmashala and suggested that the marriage should take place in an open field, but that they objected and that later Muso Singh came and said that the marriage would be celebrated in the Thakurbari of Tulsi Das. Five witnesses depose that the marriage took place in the presence of Muso Singh, Awadh Singh, Ramkhelawan Singh and Ramgulam Singh. The complainant was cross-examined as to the alleged presence of Awadh Singh at the marriage and at the time of the payment of the money, and he stated that he did tell the police that Awadh Singh was then present. The Sub-Inspector (p.w 9), however, said in evidence that the complainant did not say anything to bin; beyond what was in the fard-beyan and that the complainant did not tell him that Awadh Singh was present at the time of the payment of the money, or that Awadh Singh had come with Muso Singh to fix the marriage. P.W 11. Shyam Marandi, said that prior to the departure of the Barat from village Kujur, he had suggested to the complainant that he should have the girl inspected, but that the complainant had replied that he had confidence as Awadh Singh was the relation.
Now, if the complainant had really relied upon and had confidence in Awadh Singh in the matter, and if Awadh Singh had, as the witnesses stated, been present and a party to the preliminary negotiations, had come with Muso Singh to propose that the marriage should take place in an open field, had been present at the marriage and, again, at the payment of the money, the complainants, suspicion and wrath must immediately have been directed against him, at least as much as against Muso Singh and, more so than against either Ramkhelawan Singh or Ramgulam Singh, and that being so, it is almost inconceivable that he would not have named him with the other three as one of the persons who had been a member of the conspiracy to cheat him. It is true that there was no specific cross-examination of the complainant on the point, but I do not attach any great weight to this. The lack of any cross-examination of the prosecution witnesses as to a fact within their knowledge, which the defence seek to establish, is properly a matter of comment and inference; but there is no obligation on the defence, by cross-examination, to fill in a lacuna in the case for the prosecution. The inconsistency between the fard-beyan and the evidence given at the trial was a matter which the prosecution-witnesses themselves would properly have been asked to explain in chief. Not only were they not asked to do so, but neither the learned Magistrate nor the learned Sessions Judge appears to have directed his attention to this glaring inconsistency in the case for the proration. It seems to me impossible to say that their decision might not have been affected had they done so, the more especially as the learned Magistrate acquitted Ramgulam Singh because of the possibility that he had been falsely, implicated by the prosecution witnesses. In these circumstances, there appears to me to have been such a clear miscarriage of justice in the case of petitioner Awadh Singh as to justify interference with his conviction upon revision under section 439 of the Code of Criminal Procedure.
I am, therefore, of opinion that on the materials on the record there was a reasonable doubt as to the guilt of the petitioner Awadh Singh, of which he should have been given the benefit.
In the case of the petitioners Muso Singh and Ramkhelawan Singh, no point as to any such miscarriage of justice was taken on their behalf, but it was contended that section 530 of the Code of Criminal Procedure operates to render the whole trial void, that as the learned Magistrate had no jurisdiction to try a charge under section 366, Penal Code, the trial of the charge under, section 420 of the Penal Code was also vitiated, and it was not, therefore, open to the learned Sessions Judge merely to set aside the conviction under section 366 of the Penal Code and to leave affirmed the conviction under section 420.
The material words of section 530 of the Code of Criminal Procedure are:
“If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely:—
(p) tries an offender;
his proceedings shall be void.”
In my opinion the ordinary, plain and grammatical meaning of these words is inconsistent with the contention put forward on behalf of the two petitioners. The word “proceeding” where used in a statute dealing with legal procedure ordinarily means a step in an action or a trial, and in their context here the words “his proceedings” must, I think, be taken to refer to what has gone before, that is to say, to the proceedings in respect of which the Magistrate was not empowered by law, and are not in their plain and ordinary meaning to be construed as embracing any other proceeding or proceedings on this view, therefore, they would refer to the conviction under section 366, but not to the conviction under section 420, Penal Code.
Is there any reason why the words of the section should not be given their plain and ordinary meaning? It was argued on behalf of the petitioners that the words “his proceedings” must be understood as meaning the trial whole, on the ground that the trial is one and indivisible and must therefore, if avoided at all, be avoided in its entirety. In support of this contention, learned Counsel for these two petitioners referred to the case of Pokhar Das Ganga Ram v. Emperor. In that case, the learned Sessions Judge had, as it was held, illegally dispensed with the presence at the trial of one out of eight accused who were tried jointly for offences under sections 302 and 307, Penal Code, and on appeal it was held that not only was the trial a nullity so far as the absent accused was concerned, but also in the case of the remaining seven accused, six of whom had been convicted and one acquitted by the learned Sessions Judge. The material portion of the judgment of Young, C.J, reads as follows:—
“The learned Advocate-General sought to ignore the fact that Khem Chand had been tried with his co-accused: and argued that the trial should be treated as the trial of the other seven accused, the inclusion of Khem Chand being ignored: that the trial of each accused was a separate trial, and that eight trials were actually conducted at the same time. No authority for any such view of a joint trial was cited to us.”
“In the absence of much authority, we are constrained to hold that a joint trial is a single trial and cannot be considered as a separate trial of each person accused: it is one and indivisible. It follows, we think, that an illegality which vitiates the trial so far as one of the accused is concerned, prevents the trial from holding good in respect of the remaining accused.”
Authority on the point appears to be scanty; but in the Irish case Ex Parte Dalton the judgment of Palles C.B whose opinion is always entitled to the greatest respect, and whose judgment was concurred in by two other Judges, shows there is by no means any general consensus of opinion that an illegality which vitiates the trial of one joint accused necessarily vitiates the trial of the remaining accused. In Ex Parte Dalton a number of persons were prosecuted jointly before a Court of Summary Jurisdiction for having taken part in an unlawful conspiracy to induce the tenants upon a certain estate not to pay their rents. During the trial two of the accused, who had been admitted to bail, left the country. The Justices convicted a number of the accused including the two who had left the country. Upon an application for a writ of habeas corpus it was held that it was competent for the Court to proceed with the trial notwithstanding the absence of two of the joint accused and to convict the remaining accused. For the purposes of his judgment, the learned Chief Baron whilst carefully refraining from expressing any decided opinion thereon, assumed that the conviction of the two absent accused was invalid and then went on to say:
“Were the offence here one capable of being committed by a single individual the case would be quite clear. In such a case the conviction of two upon a charge against the two jointly should be treated as the separate conviction of each, and the invalidity of the separate conviction of one, by reason of his not having been present at the time of the conviction, could not invalidate the conviction of the other.”
This view is quite inconsistent with the proposition that the trial is one and indivisible.
Where a person is properly charged with two separate offences in one trial, his conviction upon each must constitute a separate conviction, and there seems no reason in principle why the invalidity of one conviction upon grounds which affect that conviction alone should affect or invalidate the other conviction. It cannot, in my opinion, be said that in such a case there is any such necessary prejudice to the accused as should in justice necessarily invalidate the other conviction, and it is here that such a case is to be distinguished from a case of misjoinder which necessarily affects all the charges and, therefore, all the convictions. If, in the particular circumstances of any such case, prejudice be shown, the appellate or revising Court has certainly jurisdiction to put the matter right. No prejudice to any of the petitioners has even been alleged in this case. Indeed, it is only from an accession to the contention of the petitioners that prejudice in this case might flow, since if the whole trial be vitiated, those of the accused who were acquitted by the learned Magistrate, may well be liable to stand their trial again.
That being so, I can find no adequate reason for extending the wording of section 530 of the Code of Criminal Procedure beyond the scope of what appears to me to be its ordinary, plain and grammatical meaning.
It was further contended on behalf of these two petitioners that there was a misjoinder of the charges under sections 366 and 420, Penal Code, firstly, because their joinder was contrary to section 233 and was not authorized by section 235 of the Code of Criminal Procedure, and secondly, because one charge within the jurisdiction of the learned Magistrate had been joined with another charge outside his jurisdiction.
In my opinion, there is no substance in either of these contentions. The case for the prosecution as reflected in the charges themselves was that the accused had kidnapped the girl for the purpose of passing her off as the daughter of one of them, and marrying her to the complainant in return for a payment of Rs. 2,000. So stated, it is perfectly obvious that a series of acts was alleged against the accused, in the course of which both the offences of kidnapping and of cheating were committed, and that these acts all formed part of the same transaction. The joinder of the charges was, therefore, clearly authorized by section 235(1), Code of Criminal Procedure. The second contention appears to me to rest upon a misconception. The charges were properly joined, but the learned Magistrate had no jurisdiction to try one of them. That is not a case of misjoinder at all, and the contention is merely another way of stating the main contention of jurisdiction, to which I have above referred.
In the result, therefore, I would allow the application of; the petitioner Awadh Singh, set aside his conviction and sentence and direct that he be acquitted and discharged from his bail bond. I would, however reject the application of the other two petitioners, Muso Singh and Ramkhelawan Singh, who must now surrender to their bails and serve out the remainder of their sentences.
Agarwala, J.:— I agree.
Cr. Rev. no. 1437 allowed.
S.H
Cr. Rev. no. 1457 dismissed.