1. The petitioners have been convicted by the Magistrate of Monghyr for the offence of rioting under S. 147, I.P.C, and sentenced to three months' sigorous mprisonment, with a fine of Rs. 50 each. Their convictions and sentences have been upheld by the Sessions Judge of Monghyr in appeal.

2. The not is said to have taken place on account of a land dispute between the accused Bhojal Singh and the complainant, Majun Singh. The latter had purchased the interest of three brothers Ganpat, Gur Sahai and Nathu in certain lands, including the land in dispute, from Gur Sahai and Nathu, per sale deed dated 18th June, 1918. Ganpat did not join that deed, and on 6th June, 1919 he sold his one-third share in the land to the accused Bhojal Singh. The Courts below have concurrently held that Gur Sahai and Nathu had no right to dispose of the share of Ganpat and the title of Ganpat in the land was not therefore affected by the sale deed of 18th June, 1918. Bhojal therefore had a valid title to the share of Ganpat, purchased by him in June 1919. But the Courts below have also concurrently held that the complainant was in possession of the property, though under an invalid title, including the share of Ganpat, and that the accused Bhojal did not get into possession of Ganpat's share in the property by virtue of his subsequent sale and that he attempted to take possession of the property by forcible means on the day of the occurrence, which resulted in the not and injuries on both sides. Upon the aforesaid findings the Courts below have held the accused Bhojal and his party responsible for the not and punished them as set forth at the outset of this judgment. The findings of the Courts below are of fact, and in revision it is not possible to upset them unless it was shown that those findings of the Courts below are perverse on the face of them or based upon no evidence or misapprehension of the same. It is however contended on behalf of the petitioners that the whole trial was vitiated on account of the simultaneous trial of this case and the counter-case lodged by the accused Bhojal. In support of this contention, I have been taken to the authorities from the earliest time up to the present moment. It is true that there has been considerable divergence of opinion on the subject. The earliest case on the subject is that of Queen v. Sheikh Bazu(1). In that case, though the procedure adopted was condemned as irregular, it was held that it was not illegal and did not vitiate the trial inasmuch as no prejudice to the accused was proved, and as a matter of fact the trial and conviction in that case were upheld. Similar was the view taken in the case of Queen v. Surroop Chunder Paul(2).

3. Then came a change in the opinion in the case of Hossein Buksh v. Empress(3). The practice of simultaneous trial of counter-cases of rioting was condemned in that case and the conviction was set aside. Prinsep, J., held that:

“the course adopted by the Magistrate had materially prejudiced the interest of the accused.”

4. The learned Judge adhered to this view in the case of Chakowri Lall v. Moti Kurmi(4). The view was intensified in the case of Bachu Mullah v. Sia Ram Singh(5) (Petheram, C.J, and Beverley, J.) and it was clearly laid down that the mode of simultaneous trial:

“affects the validity of the conviction on it. In other words, that it must be presumed that the evidence was so affected by the circumstances, under which the witnesses gave it, that conviction must be set aside.”

5. These cases were reviewed in the case of Queen-Empress v. Chandra Bhuiya(6) which was originally heard by Pigott and Hill, JJ., and on account of difference between those learned Judges, the case were referred to a Special Bench presided over by them and Prinsep, J. The judgment was delivered by Prinsep, J. He was a party to the earlier decisions Hossein Buksh v. Empress and Chakowri Lall v. Moti Kurmi referred to above, so there can be no misapprehension as to the meaning of the decision in those cases. As a result of the survey of the authorities, Prinsep, J., held that a simultaneous mode of trial of counter-oases of rioting, although irregular, would not vitiate the trial, unless the accused were prejudiced in their defence.

6. The next case on the subject is that of Pran Krishna Saha v. Emperor(7) (Banerjee and Handley, JJ.) decided in 1903. In the meantime the famous decision of their Lordships of the Privy Council in the case of Subrahmania Ayyar v. King-Emperor(8) had come in. That produced very great effect in the way in which several Judges applied that case to the several provisions relating to illegalities and irregularities under the Code of Criminal Procedure. The principle of that case was applied to simultaneous trials of counter-oases of rioting by Banerjee and Handley, JJ., in the aforesaid case and it was held that the procedure is illegal and is not curable by Section 537 of the Cr PC. The case before their Lordships was one of a proceeding under S. 107 of the Code. If their view is adopted as correct, the principle of that ruling will apply with greater force to simultaneous trials of cross-cases under the Code of Criminal Procedure. But the effect of the Privy Council decision did not last long, so far as the simultaneous trials of counter-oases are concerned, and in the same year but later in the case of Sahadev Ahir v. Emperor(9) Ghose and Stephen, JJ., explained the decision in the case of Subrahmaima Ayyar v. King-Emperor as being restricted to the cases of joinder of charges in the same trial and not to separate trials of counter-cases held simultaneously.

7. In face of this grave conflict of opinion it is a difficult task to decide which view is correct. Broadly speaking, the reason, upon which simultaneous trials of counter, cases have been held to be illegal, is that the accused in one case will be very much prejudiced and embarrassed, if examined on oath as a witness in the counter-case, if both the cases proceed simultaneously. But this objection is not obviated by holding the trial of one of the cases and suspending the other, till the disposal of the former, for even if one of the cases is suspended the accused in that case does not cease to be so and will equally be embarrassed, if examined as a witness in the other case. If the principle be applied strictly and abstractly, the result will be that none of the counter-cases should be tried at all. The accused in one case is necessarily a witness in the other, and this unfortunate position cannot possibly be obviated by any mode of trial.

8. Now examining the point in the light of the statutory provisions in the Code, I do not find any prohibition of simultaneous trials of counter-oases and the learned vakil on behalf of the petitioners has not cited to me any section of the Code.

9. Reference however is made to certain sections, relating to the joinder and trial of charges in Ch. 19 of the Code, notably Ss. 233 and 239. The former is an undoubted preposition that for every distinct offence there should be a separate charge and a separate trial subject to the exceptions laid down in the subsequent sections in the chapter. One of those exceptions is S. 239. I agree with the learned vakil that S. 239 has no application to the case, and the trial is not sought to be supported under that section. The charges in bath the cases are separate and they have been separately tried. It would be doing violence to the provisions of the Code to hold that the accused were tried jointly together. They were studiously kept apart and separate from each other. The fact that they were tried simultaneously does not go to show that they were tried together and indeed “simultaneous” and “joint” are contradictory terms. Therefore we cannot go further than holding that the trial in certain cases and in certain circumstances might be irregular and improper, but that would not entitle the accused to have the whole trial set aside, unless it was clearly shown that the procedure adopted had prejudiced him in his defence. This takes us to the next contention of the learned vakil on behalf of the petitioners. Some of the evidence has been read to me to show that the accused were prejudiced, but I have not been impressed at all with that argument. The criticizms made with regard to certain passages in the evidence in the case are not due to the simultaneous trial of the counter case. Those criticisms could a he have been if the other case was not tried at all. The judgments of the Courts below have based their findings entirely upon the evidence in this case and when reading them, one would not dream even of the existence of a counter-case This shows how studiously the other case was kept apart in deciding the present case. In fact the accused were not prejudiced. This also is obvious from their acquiescence in the trial, without any demur or objection on their part throughout the trial. It is still more clear from the grounds of appeal taken before the learned Sessions Judge, where the prejudice due to the joint trial or to its being illegal or irregular has not been alluded to. The accused were therefore not at all prejudiced in the present case by the mode of trial adopted by the Magistrate.

10. The finding of the Court below as to possession of the complainant and the aggressive part take by the accused in enforcing their supposed right based upon the sale deed of June 1919 is supported by the evidence on the record.

11. The conviction must therefore be upheld. The sentence passed upon the petitioners does not appear to be severe. The application is rejected.

V.S/R.K

12. Rule discharged.