1. The prisoner Hari was charged with and tried at one trial for (i) theft of a cart and (ii) house-breaking by night followed by theft of 2 bullocks. He lives at Khemra and on the night of the 26th March last stole a cart which had been left outside the house of a fellow-villager named Chandra-sikhar. In order that he might remove the cart for sale he broke into the cattle-shed of Kumhar, another resident of Khemra, took out 2 bullocks, yoked them and drove off to Kasipani where he sold the cart. On being pressed to give a receipt to evidence the sale he absconded leaving the bullocks also behind. He was sentenced by the District Magistrate, Raipur, under sections 379 and 457, Indian Penal Code, to 3 months' rigorous imprisonment for each of the two offences. The Sessions Judge, Chattisgarh Division, has reported the case under section 438, Code of Criminal Procedure, as he considers the theft and the house-breaking to have been distinct offences which should have been tried separately. In his opinion the two offences were not so connected together as to form the same transaction, and it must be conceded that if this view is correct, the trial was illegal, being in contravention of section 233, Code of Criminal Procedure, and not authorized by section 235(i) or section 234 ibid: see Subrahmania Ayyar v. King-Emperor (1) and Emperor v. Bisahu (2).
2. Section 235(1) of the Code runs as follows:—
“If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence”.
3. The word “transaction” is not defined in the Code. Etymologically it means “carrying through” and according to Batty, J., in Emperor v. Datto Hanmat Shahapurkar (3) suggests not necessarily proximity in time so much as continuity of action and purpose. The importance of proximity in time was dwelt on in Queen-Empress v. Fakirappa (4) and in Queen-Empress v. Vaijiram (5). Where offences are separated by any distinict interval of time it will often be impossible to describe them as part of the same transaction: see the case cited at pages 406-411, Volume III of Russell on Crimes and Misdemeanors (6th edition). Bat that offences need not be committed on the same occasion appears clearly from illustration (c) and (f) to sub-section (1) of section 235, in each of which the acts mentioned, though separated by a distinct interval of time, are closely connected by continuity of purpose or progressive action towards a single object. With the present case may be compared illustration (c) to section 239 of the Code, which lays down that in the course of one and the same transaction two persons may commit one theft jointly and one of them two other thefts singly: the necessary inference is that two thefts by the same person may constitute part of one transaction, a position which cannot be affected by the circumstances that one of the thefts is prefaced by a house-breaking essential to its perpetration. The offences now under consideration are characterised by practical identity of both time and place. They are further connected by the prisoner's admission that he took the bullocks because removal of the cart would otherwise have been impossible. I think then that they were rightly tried together as unmistakably forming part of a single transaction. And I accept as correct the following dictum of Chandavarkar, J., in Emperor v. Sherufalli Allibhoy (6):—
“The real and substantial test, then, for determining whether several offences are connected together so as to form the same transaction depends upon whether they are so related to one another in point of purpose, or as cause and effect, or as principal and subsidiary acts, as to constitute one continuous action. A mere interval of time between the commission of one offence and another does not by itself necessarily import want of continuity, though the length of the interval may be an important element in determining the question of connection between the two”.
4. There being no misjoinder to vitiate the trial I must decline to interfere. Let the record be returned with a copy of the foregoing remarks.