John Beaumont, Kt., C.J.
1. These are two applications in revision made by the accused applying to us to set aside their convictions before the Sub Divisional Magistrate, First Class, Ratnagiri, which were confirmed by the Sessions Judge. The point of law taken is this. The accused were charged that on or about May, 28, 1931, they committed a theft of utensils in the house of the complainant and on June 7, 1931, at night they broke into the house of the aforesaid complainant and committed theft and that they thus committed offences under Sections 380 and 457 of the Indian Penal Code. The learned Magistrate came to the conclusion that he could try the offences together under Section 234 of the Criminal Procedure Code. The question is whether that conclusion was right.
2. So far as it is necessary to state the facts they can be stated very shortly. It is alleged, as the charge shows, that on May 27, a theft was committed from the cattle shed of the complainant's house. On June 7, a theft was committed at night from the complainant's house. The complaint was made in respect of the second offence in the first instance, and in inquiring into the second offence the Police got notice of the first offence and the Police sent up two separate charge-sheets in respect of the two offences. But as 1 have said the learned Magistrate came to the conclusion that he could frame a single charge in respect of the two offences.
3. Now, Section 233 of the Criminal Procedure Code 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 succeeding sections referred to. The learned Government Pleader says that there are not here two distinct offences. He relies on the adjective 'distinct', but I think that contention is not well-founded, As charged there was a distinct offence on May 27, that offence coming under Section 380 of the Indian Penal Code. There was another distinct offence on June 7, that offence being of a dual character and being punishable both under Sections 380 and 457 of the Indian Penal Code. It may be that the dual offence on June 7, could not be called two distinct offences, but it seems to me that the offence on May 27 and the dual offence on June 7 were clearly two distinct offences, and there cannot be a single charge or a single trial unless the case can be brought within one or other of the exceptions to Section 233. Section 234 provides that when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences he may be charged with and tried at one trial for any number of them not exceeding three, and then there is a definition of 'offences of the same kind' they are only of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code or of any special or local law. Clearly offences charged under Section 380 and Section 457 are not offences of the same kind, and, therefore, I think the learned Magistrate was wrong in thinking that he could frame a single charge under Section 234. It has been suggested that the cases might be tried jointly under Section 235 or 239(d), as being offences committed in the course of the same transaction; the allegation is that both these offences were committed in order to drive the complainant out of the house which the accused desired him to quit. But themere fact that there may have been a common purpose of that nature cannot make two perfectly distinct offences part of the same transaction. A mere common purpose does not constitute a transaction, and, in my opinion, there was no sufficient connection between these two offences to justify their being tried together under Section 235 or 289(d). I think the learned Magistrate might either have framed a single charge of offences under Section 380 leaving out any reference to an offence under Section 457, or he might have framed separate charges and tried the two charges separately. As he adopted neither of these courses, the trial was illegal and having regard to the views expressed by the Privy Council in the well-known case of Subrahmania Ayyar v.King-Emperor I.L.R. (1901) Mad. 61 : 3 Bom. L.R. 540 and to the decision of this Court in Emperor v. Manant : AIR1926Bom110 . I think that we cannot hold that where an accused has been charged with and tried for two offences which cannot be tried together that is an irregularity which can be cured under Section 537 of the Criminal Procedure Code. We have not been into the merits of this case except so far as it was necessary to consider the point of law. However, from the judgment of the lower Courts there does not seem to be any particular merit in the case of the accused, The convictions will have to be set aside on a pure technicality, but I see no reason why we should not direct the two accused to be tried again as was done by this Court in Emperor v. Manant. We, therefore, set aside the conviction and sentence and direct that the accused be tried according to law. In giving that direction we do not mean to fetter the discretion which is normally vested in the Crown of considering whether the prosecution should proceed or not. If the authorities acting on behalf of the prosecution come to the conclusion in all the circumstances of the case that it would be better not to proceed with a new trial we have no intention of fetteringtheir discretion.
4. In my opinion the joinder of charges in this case was bad in law. It was not warranted by Sections 234 and 239(d) of the Criminal Procedure Code because the offence unders. 457 of the Indian Penal Code, though perhaps not distinct from the second offence under Section 380, was undoubtedly distinct from the first offence under that section. The joint trial of the accused on these charges was not warranted by Sections 235 and 239(d) because the incidents of May 28 and June 7 cannot reasonably be regarded as parts of the same transaction. That being so, we have to consider the effect of the ruling of the Privy Council in Subrahmania Ayyar v.King-Emperor I.L.R. (1901) Mad. 61 : 3 Bom. LR. 540 p c. That decision has not been interpreted by the Courts as laying down a hard and fast rule that the breach of a mandatory provision of the Code of Criminal Procedure vitiates the trial irrespective of the question whether the accused has been prejudiced or not. If there were such a rule, Section 537 would be practically a dead letter because most of the provisions of the Code, apart from those which are purely discretionary, are mandatory in form. The Courts have laid stress on the words ' as to the mode of trial' in the Privy Council judgment and drawn a distinction between the provisions of the Code relating to the joinder of charges and joint trials and provisions relating to procedure in respect of such matters as the manner of recording evidence, the recording of reasons for adopting a particular course, the form of an order or judgment, and so on. The breach of a mandatory provision of the latter kind has been held to be curable by Section 537 if the accused has not been prejudiced. On that point I may refer to Emperor v. Khushal : (1926)28BOMLR1026 Emperor v. Vishram : (1930)32BOMLR596 and Forbes v. Ali HaidarKhan I.L.R. (1925) Cal. 46 I think it is perhaps not altogether clear that their Lordships of the Privy Council intended to lay down that even the misjoinder of charges is necessarily a fatal defect where there has been no prejudice caused thereby to the accused. In Subrahmania Ayyar's case the prejudice to the accused was obvious. The charges there covered no less than forty-one different acts extending over a period of two years. However, the ruling has been interpreted in that sense, as the cases referred to by Mr. Thakor show-Emperor v.Ramnarayan : (1919)21BOMLR732 . Emperor v. Manant : AIR1926Bom110 . and Emperor v. RamanLal I.L.R. (1926) . All 312. Speaking for myself, I think there must almost always be prejudice in a case of the kind referred to by Lord Halsbury in Subramahnia Ayyar's case, that is to say, a case where an accused person is tried '' for more different offences at the same time and those offences spread over a longer period than by law could have been joined together in one indictment.' To take the example of this present case, when once it is held that the trial of these charges together is prohibited by the Code, it would be very difficult to say that the accused have not been prejudiced by the joint trial. The volume of evidence in the case was doubled and the Court may well have been influenced in its Conclusion as to each charge by the consideration of the improbability of two independent sets of witnesses coming forward to depose against the accused. The only point which has caused me any real difficulty is that the two offences under Section 380, although they occurred on different dates, could legally have been tried together; and the offence under Section 457, although legally a distinct offence, was merely incidental to one of the offences under Section 380. I consider, therefore, that the breach of the provisions of the Code is really more a breach of the letter than the spirit. However, I agree with the learned Chief Justice that the ruling of the Privy Council cannot be effectively distinguished, and I think in view of that ruling we are bound to hold not only that the trial of the accused on these charges was bad but that the illegallity cannot be cured by Section 537. I agree with the order proposed by the learned Chief Justice.