1. There are three appeals in this case, namely, (1) Criminal Appeal No. 45-B of 1916 by Gunwant Rao (2) Criminal Appeal No. 46-B of 1916 by Krishna Rao, and (3) Criminal Appeal No. 50-B of 1916 by Rajaram. These appeals were heard together, and this judgment will govern the disposal of them all. It is necessary to state the main facts leading up to them.

2. On the 16th October, 1912, one. Asaram Sangidas sued the appellant Rajaram on a simple moftgage-bond for Rs. 4,500. The suit was No. 169 on the file of the Subordinate Judge of Daryapur in Berar. Rajaram admitted the deed, but pleaded that he had repaid Rs. 4,200 on the 23rd May, 1909, and in support of this plea he produced and filed a document purporting to be a receipt for Rs. 4,200 executed by Asaram Sangidas. The plaintiff denied the payment and repudiated the document as a forgery. Rajaram gave evidence in the suit in support of the receipt. The appellant Gunwant Rao is the writer of the receipt and, on the same day as Rajaram—the 23rd July, 1913—he gave evidence in support of the payment and the document. The appellant Krishna Rao attested the receipt, and on the 22nd September, 1913 he gave evidence in support of it and of the payment which it purports to evidence. One Maroti was also called as a witness to support the receipt, and gave evidence in support of it on the 10th April, 1913, but being recalled for cross-examination by the plaintiff on the 14th February, 1914 he retracted his earlier statement and declared that it was false and had been made under the influence of the defendant Rajaram. The Subordinate Judge held the story of payment to be false, and the receipt to be a forgery; and gave the plaintiff a decree. An appeal was made to this Court and was dismissed by Prideaux, A.J.C An application subsequently made to him to review his judgment was also dismissed. Then Asaram Sangidas applied for sanction to prosecute Rajaram, Gunwant Rao, Maroti and Krishna Rao, and, by an order, dated the 27th April, 1915, the Subordinate Judge gave sanction for the prosecution of—

(1) Rajaram under Ss. 467, 471 and 193, Indian Penal Code;

(2) Gunwant Rao, under S. 193, Indian Penal Code;

(3) Krishna Rao, under S. 193, Indian Penal Code; and

(4) Maroti, under S. 193, Indian Penal Code.

3. Asaram Sangidas, armed with this sanction, complained only against Rajaram, Gunwant Rao and Krishna Rao, excluding Maroti for the obvious reason that, in the civil suit, this witness had gone over to his side. One Ganpat Sitaram also attested the receipt, but he also was successfully suborned by Asaram Sangidas, a Marwari money-lender. He gave evidence—palpably false—that Rajaram sent for him and shewing him the receipt, asked him to attest it, he thereupon attested it, no one else being present and no money being paid. Whether the receipt be genuine or false, the testimony of this witness as to the circumstances under which he attested it was, to my mind, the suborned testimony of a false witness Either he abetted a forgery, and has told a lie to save himself, or he witnessed a payment and has been bribed to deny the fact falsely. I make no choice between these inferences, because I wish to avoid all expression of opinion on the nature of the receipt and the merits of the cases against the appellants until I have decided the question whether they have been legally tried.

4. The three appellants were jointly tried by the Sub-Divisional Magistrate of Ellichpur, and the following were the charges (so far as they need be reproduced) framed against them:—

Rajaram — (1) That you, between the 16th October, 1912 and 8th January, 1913, at Wadner Gangai, abetted the forging of receipt Exhibit P-4 * * * an offence punishable under S. 467/114, Indian Penal Code.

(2) That you, on the 8th January, 1913, at Daryapur, dishonestly used the above forged receipt * * * an offence punishable under S. 471, Indian Penal Code.

(3) That you, on or about the 23rd July, 1913, at Daryapur, stated on oath * * * that you paid Rs. 4,200 to Asaram and that Asaram signed the receipt (Exhibit P-4) * * * and thereby committed an offence punishable under S. 193, Indian Penal Code.

5. Gunwant Rao—That you, on the 23rd July, 1913, at Daryapur, stated on oath * * * that Rajaram paid Rs. 4,200 to Asaram in your presence and that Asaram signed the receipt, (Exhibit P-4) * * * and thereby committed an offence punishable under S. 193, Indian Penal Code.

6. Krishna Rao—That you, on the 22nd September, 1913, at Daryapur, stated on oath * * * that Rajaram paid Rs. 4,200 to Asaram in your presence, and that Asaram signed the receipt Exhibit P-4 * * * and thereby committed an offence punishable under S. 193, Indian Penal Code.

7. The trial ended in convictions upon all the charges and each accused was sentenced to undergo rigorous imprisonment for five years, Rajaram getting three concur rent sentences for that term. Hence the above appeals.

8. The first question which I am called on to decide is whether the joint trial of the three appellants was legal, in that it was covered by Section 239 of the Cr PC, 1898, as applied to Berar. There is a long and consistent cursus curia, in support of the view that the joint trial of several witnesses to the same transaction for giving false evidence is not permissible, and it seems-expedient to examine the cases as briefly as possible.

9. In Queen v. Bhairo Misser(1) the framing of a separate charge against each person accused of giving false evidence was approved, but the joint trial of five such persons was not disturbed on the ground of absence of prejudice. In Queen v. Khoab Loll(2) it was clearly laid down that a person charged for perjury is entitled to have the specific charge against him tried quite independently of a like charge against any other person. In Queen v. Kureem(3) the joint trial of several persons for giving false evidence was condemned as erroneous. In Queen v. Moharai Misser(4) it was held to be wholly incorrect to charge a number of persons-jointly with intentionally giving false evidence. Macpherson, J., said:—

“It may be that the statements which are said to be false were all made in the course of one particular trial, and that they were all made in order to attain one particular end. Still each statement is made by one man only * * * The lie (if it be a lie) told by a witness is non-etheless his own particular lie, because other witnesses have about the same time told similar lies, and it is each man's own lie, and not his neighbour's, that can alone be used against him, or be the subject of a prosecution under S. 193.”

10. The learned Judge, however, went on to say that several persons separately charged might yet, where convenient, be jointly tried. However, in the later case of Nathu Sheikh v. Queen-Empress(5) the joint trial was strongly condemned as an improper mode of procedure.

11. Turning now to the Allahabad High Court, in Queen v. Ruttee Ram(6) it was decided that there should be a separate charge and trial for each person accused of perjury. This was strongly repeated in Empress of India v. Anant Ram(7) the facts of which case bore some resemblance to the present case. A, S, B, D, and P were jointly tried, A in respect of three receipts for the payment of money, produced by him in a judicial proceeding, on three charges of falsely using as genuine a forged document, and on three charges of using evidence known to be false; S. B, D, and P. on charges of giving false evidence in the same judicial proceeding as to such payments. The High Court (Straight, J.), being unable to say that the accused persons had not been prejudiced in their defence by having been improperly tried together, set aside the convictions and ordered a fresh trial of each of the accused separately. The particular prejudice mentioned by the learned Judge was that the joint trial had deprived each accused of the power to call the others as witnesses to depose to the truth of the story he had told. In Empress v. Harnam(8) the joint trial of H, for using as genuine a forged receipt, and of R forgiving false evidence in the same suit in which the receipt had been used, was set aside as wholly illegal. The same view of the law was enunciated in Empress of India v. Niaz Ali(9), though merely as an obiter dictum. But in Empress v. Mehrban Singh(10) the joint trial of several persons who had combined in verifying as true the same false written statement was considered unobjectionable.

12. In a case reported as High Court Proceedings 15th March, 1867 (Appellate Side) (11) it was affirmatively ruled that in cases of giving false evidence, a separate charge must be framed against each accused, and a separate trial held of each charge. In Kotha Subba Chetti v. Queen(12) the joint trial of three persons accused of making false statements about the same matter in the course of an inquiry was condemned as a grave error of procedure vitiating the trial.

13. In Reg v. Bhavanishankar(13) the necessity for a separate charge and trial in respect of each person accused of giving false evidence was declared. In King-Emperor v. Krishna Rao(14) it was held that two persons who give false evidence at the same trial commit offences which are distinct and must be separately tried and that a joint trial is not merely an irregularity which can be cured, but an illegality which cannot be condoned by any assent of the accused, and is, therefore, fatal to the trial.

14. At the present day, under the Code of 1898 by which we are governed, the law, as I understand it, is this that, save as otherwise expressly provided, for every distinct offence of which a person is accused there shall be a separate charge, and this charge shall be tried separately. The rule is enacted by S. 233, and the exceptions to it are provided by Ss. 234, 235, 236 and 239 of the above Code; and the only circumstances in which the joint trial of two or more persons is permitted are those specified in S. 239. In Emperor v. Balwantsing(15). I attempted an explanation of this section and stated the essentials for the application of the section in the following words:—

“(a) that the offence or offences charged should be committed in the same transaction; or

(b) that the joint accused should be principals and abettors of, or persons who have committed and attempted to commit, the same offence.”

15. And I went on to hold that the words “the same offence” signify one and the same physical act of crime and not different acts constituting crimes called by the same name or punishable under the same section. It is clear that when A and B give false evidence in the same judicial proceeding, even though they depose on the same day regarding the same matter and in almost the same words, they do not commit “the same offence” but “different offences” within, the meaning of those phrases in S. 239 of the above Code. It follows that they cannot be jointly tried unless these different offences were committed by them in the same transaction. What is meant by the words “the same transaction” has been considered in several cases. A careful and accurate analysis of the subject was made by Drake-Brockman, J.C, in Emperor v. Hari Root(16), where it is said that in order to constitute the same transaction for the purposes of section 235(1) of the Cr PC,

“the acts done must be so related to each other in point of purpose, or as cause and effect, or as principal and subsidiary acts, as to constitute one continuous action. The test to be applied is not so much proximity in time as continuity of action and purpose.”

16. In Emperor v. Balwantsing I defined the same transaction for the purposes of S. 239 to be,

“a series of acts connected together so as to amount to what human reception regards as a proceeding begun, continued, and ended.”

17. The significance of the phrase was more fully discussed in Queen Empress v. Fakirappa(17), in Queen-Empress v. Vajiram(18), in Emperor v. Sherufalli(19), in Emperor v. Jethalal Harlochand(20) and in Emperor v. Datto Hanmant(21). Nevertheless, the question whether or not different offences by two or more persons have been committed in the same transaction, is a question of fact, to be answered with reference to the circumstances of each particular case. With one exception, however, I have been unable to find any published decision in which it has been held that persons accused of giving false evidence in the same judicial proceeding may lawfully be tried together. The exception is found in the recent case of Emperor v. Ganesh Narayan Dikshit(22), in which such a joint trial was held to be not only legal, but one that was demanded in the interest of public time and public convenience, upon the ground that the giving of false evidence in judicial proceeding was one of the means which had to be resorted to in order to carry out one sustained and continuous plot for the purpose of screening the real offenders in a robbery, and of exposing an innocent man to a false charge, with a view that the accused or some of them might participate in the stolen property. The learned Judges distinguished the case from that of King-Emperor v. Krishna Rao, and found some resemblance to it in Emperor v. Datto Hanmant. It is upon this ruling that reliance has been placed by the learned Government Advocate. The facts of the case were somewhat exceptional. The accused, five in number, finding that a robbery of property worth Rs. 60,000 had been committed, aided and abetted each other in inducing one Tukya, whom they knew to be entirely innocent of the theft, for the consideration of a bribe of Rs. 500, falsely to confess to complicity in the crime and to acquiesce in being prosecuted for it, with the object that the accused or some of them might share the loot with the real thieves. Three of the accused were Police Officers, one was a Police Patel, and one a money-lender. Tukya was wrongfully confined, evidence was fabricated to procure his conviction, a false prosecution was instituted against him, and was supported by evidence given by the accused. The chief accused—a Sub-Inspector of Police was convicted of fabricating and giving false evidence, or wrongful confinement, and of causing the institution of false proceedings; while, in the same trial, the Police Patel was convicted of giving false evidence. The trial was held to be covered by Section 239 of the Cr PC.

18. With due respect, I have considerable doubt as to the soundness of this decision. That public time was saved, and public convenience served, by holding a single trial in that particular case, is obvious. But a definite rule of law, such as that enacted by Section 233 of the Cr PC, cannot be disregarded to accelerate or facilitate the disposal of a case against several offenders. S. 239 does not permit the joint trial of different offences, committed by different persons in pursuance of a conspiracy, but only where their acts form parts of the same transaction. Several distinct transactions, each complete in itself, and carried out at a different time from the others, may be necessary to attain the eventual purpose of a conspiracy for crime between two or more persons. In many cases the receiver of stolen property is, by conspiracy with the thief, an accessory before the fact of the theft whereof the proceeds are received by him. But there is considerable divergence of opinion as to whether the act of theft, and the act of receiving can be considered as parts of the same transaction for the purposes of S. 239: In the matter of A. David(23), Bishnu Banwar v. Empress(24), Abdul Majid v. Emperor(25), Emperor v. Balabhai(26) and Emperor v. Jethalal Harlochand. Again, when an attested document is forged for use in a judicial proceeding, ex necessitate rei, there must be conspiracy between the person for whose benefit it is forged, the scribe (if he is a different person), and the attesting witnesses to support the document in Court; and, in one sense, they may be said to have a common purpose. Nevertheless, the forgery of the document, and its production in Court, may be divided by years of time. It would be an undue straining of language to describe these two distinct acts, when done by different persons, as one transaction, merely because they are committed in the furtherance of a conspiracy between them. Therefore, it seems to me that where A forges for B a bond in 1910, which B produces in Court to sustain a claim in 19IS, it would not be legal to try A and B together for the different offences of making and using a false document. In the Allahabad cases above cited there was obviously a conspiracy to a common end between the several persons giving evidence in support of the same fact; yet the joint trial was condemned. The distinction is clear. Though A and B may conspire to give false evidence to the same effect with the common object of inducing a Court to believe and hold to be true that which is not true, nevertheless, the Act of A in going into the witness-box, taking an oath, and telling a lie, is not any part of the same transaction as the similar but distinct act of B. This was pointed out in Queen v. Maharaj Misser, and seems to be a view well established by a current of decisions, quoted above, all but one of which were not considered, and seem to have been overlooked, in Emperor v. Ganesh Narayan Dikshit.

19. In any event, the facts of the present case are widely different from those of Emperor v. Ganesh Narayan Dikshit, and are in close analogy to the facts in Empress of India v. Anant Ram and Empress v. Harnam. Following those decisions, I hold that the joint trial of the three appellants in this case was not permitted by law: but, whereas it was formerly the view that a misjoinder of this kind was a mere irregularity which was curable under Section 537 of the Cr PC—In the matter of Abdur Rahman(27) followed in Kali Prasad Mahisal v. Queen-Empress(28) and Kara Kalal v. Ram Charan Pal(29)—that view has now been overruled by the Privy Council: Subrahmania Ayyar v. King-Emperor(30). Therefore, I have no alternative but to set aside the present trial as illegal. There is another ground leading to the same conclusion, namely, the admission as evidence of matter not legally admissible. The complainant Asaram was allowed to file certain certified copies intended to prove that four different documents, namely, (1) a will, (2) a receipt, (3) a deed of lease, and (4): another receipt, written by the accused Krishna Rao, were suspected to be false documents, and were not acted upon by the Judges of the several suits in which they were filed: and that the accused Gunwant Rao had similarly written one receipt and attested another, which were-considered false by the Judges who had to adjudicate upon them. This evidence was objected to as irrelevant, but the learned Sub-Divisional Magistrate ruled that the documents, and the judgments referring to them, “are admissible for the limited purpose mentioned in Section 15 of the Evidence Act.” With due respect for that opinion, I am unable to see what, this section has to do with the matter. There was no question here whether the writing, attestation, or production of the receipt for Rs. 4,200 was accidental or intentional. Each was admittedly an intentional act; and it seems to me that to judge of the intention and knowledge of the scribe and attesting witness by the opinions of other Judges on other documents written and attested by these persons in suits and proceedings to which they were not parties, is a use of Section 15 of the Evidence Act which was never intended by the Legislature. Many of our Judges are given to denouncing as forgeries documents which properly they can only hold to be unproved; and such denunciations are superfluous and worthless. In any case they would be excluded from use as evidence by Section 43 of the Evidence Act, at trials connected with the documents themselves. A fortiori they are irrelevant at a trial of the same scribe or witness in connection with some different document. Where A is accused of forgery, or theft, or murder, or any other offence, his previous conviction for an offence of the same kind, however often repeated, cannot be proved to prejudice him on the merits of the trial by showing that he is given to the offence. It amounts to evidence of character, and if in civil cases the fact is irrelevant that the character of any person concerned is such as to render probable or improbable any conduct imputed to him, a fortiori it is irrelevant against an accused. If, instead of the negative opinions of other Judges which have been treated as facts in the present case, we had it that Krishna Rao and Gunwant Rao had been convicted of forgery and false evidence in respect of each of the suspected documents referred to the convictions would have been irrelevant and inadmissible under Section 15 of the Evidence Act, to prove an alleged guilty intention of these persons, in attesting and writing the receipt in the present case. Such convictions could only have been proved under the conditions laid down in Section 54 of the Evidence Act, and for the purpose of sentence in a case decided. The above matter, admitted as evidence in this case, is of that general kind which is excluded by Explanation I, Section 14 of the Indian Evidence Act; and S. 15 must be read as subject to S. 14, so far as evidence of knowledge and intention is concerned. The fact that a man is generally dishonest, generally malicious, generally negligent or criminal in his proceedings, does not bear with sufficient directness on his conduct on any particular occasion, or as to any particular matter, to make it a safe guide for interpreting his conduct; what is wanted is a fact which will throw light on his motives and state of mind with reference to that particular occasion or matter. Illustrations (n), (o) and (p) make this clear, and are in no way inconsistent with illustrations (a) and (b) to Section 14 of the Evidence Act. It would be dangerous to infer that, because a man was generally dishonest, he was dishonest in a particular case. In the present case the evidence given is no more than that the accused were suspected of taking part in the making of false documents in other cases. Such irrelevant matter must unquestionably have prejudiced the accused in their trial.

20. For the above reasons I hold the trial in this case to have been a nullity, and allowing all the appeals, I set aside the convictions and sentences and direct that the accused be re-tried according to law.

P.N/R.K

21. Appeals allowed;

22. Re-trials ordered.