1. The appellant and one Ishwarlal were tried by the Sessions Judge at Ahmedabad with the aid of assessors for offences punishable under the Explosive Substances Act, 1908. Originally both the accused were charged under Section 6 read with Sections 3 and 4(a) of the said Act and the appellant was in the alternative charged under Section 4(b). It was alleged that, at the instance of accused No. 2 Ishwarlal and from the wooden patterns supplied by him, the appellant prepared in October, 1942, and early in November, 1942, in his iron foundry at Ahmedabad cast-iron bomb shells and their screw caps, knowing or having reason to believe that the shells would be used as containers of explosive substance and with intent by means thereof to cause unlawfully and maliciously explosions of a nature likely to endanger life or cause serious injury jo property in British India, and by making and supplying those containers, which were adapted for causing or aiding in causing an explosion with an explosive substance, they intentionally aided and abetted the commission of offences punishable under Sections 3 and 4(a) of the Act, which were committed at the Ghee Kanta Police Chowkey on December 1, 1942, at the Ellis Bridge Police Chowkey on November 6, 1942, and at the Rangila Police Chowkey on November 22, 1942. The alternative charge referred to the manufacture of bomb shells with intent to enable another by means thereof to endanger life or cause serious injury to property in British India. After the evidence was recorded and the arguments on both sides were heard, the former charge was dropped as against the appellant. Three of the assessors found the appellant to be guilty and Ishwarlal to be not guilty. The learned Judge, agreeing with them, acquitted accused No. 2 Ishwarlal and convicted the appellant under Section 4(b) of the Explosive Substances Act, 1908, and sentenced him to rigorous imprisonment for two years.
2. In the months of November and December, 1942, bombs were thrown in different places in Ahmedabad, and some of them resulted in explosions. Three of them were included in the charge. Of those the first one was the bomb thrown on the Ellis Bridge Police Chowkey on November 6, 1942. It broke the glass of a window and the Police Sub-Inspector Mr. Chinoy found the bomb lying in the verandah. As its fuse was extinguished, it did not explode and was placed by him in water in a bucket. It was a bomb of the shape of a motor-horn bulb and it is article No. 17 before the Court. Thereafter another bomb was thrown at Rangila Police Chowkey on November 22, 1942. That bomb also did not explode as the fuse got extinguished prematurely. The Head Constable Abdul Hussein picked it up and placed it in a bucket of water. It is of the shape of a cylindrical barrel and is article No. 16 before the Court. The third bomb mentioned in the charge was thrown at the Ghee Kanta Police Chow-key on December 1, 1942, at about 3-30 p.m. It exploded with a loud noise and two constables were injured. A young man was seen cycling hurriedly past the window of the Police Chowkey, but was not identified or traced. The Assistant Superintendent of Police went there and took charge of the pieces of the exploded bomb. Those pieces when assembled made a bomb shell of the motor horn bulb type similar to article No. 17. Article No. 1 contains those pieces of the bomb and articles Nos. 2 and 3 are its screw caps.
3. These and other bombs of similar types led the police to suspect that their cast-iron containers must have been made in some foundry in Ahmedabad itself and eventually they succeeded in tracing their manufacture to the foundry of the appellant from the information given by Mansukhram Nathalal. This Mansukhram and the appellant were once working together in the foundry of Atmaram Bhuder at Ghee Kanta. About six months before the Divali of Samvat 1998 the appellant started his own foundry on the Ghee Kanta Road and in June 1942 Mansukhram was employed by him as a fitter and manager. After the arrest of Mr. Gandhi, the appellant's foundry was closed, as all the mills and foundries in the City were also closed. Mansukhram then went away to his native place in Lunavada State. He returned to Ahmedabad on October 7, 1942, and found that the appellant's foundry had started working again. The appellant took him up again as fitter and manager on October 10, 1942. Although the foundry was working under the name of R. Keshavlal and Brothers, the appellant was its proprietor and was himself conducting it. About September 2, 1942, when Mansukhram had not yet rejoined the foundry, accused No. 2 Ishwarlal went there with a wooden pattern and a core-box and placed an order with the appellant. Under the appellant's orders the moulder Ratilal made two cylindrical containers of the type of barrels like article No. 16 according to the pattern supplied. He also made six containers of the type of the motor horn bulb like article No. 17. He made them at nigh? with the help of Din Dayal and Nima and handed them over to the appellant. Some days thereafter, after Mansukhram had rejoined the foundry, accused No. 2 Ishwarlal gave an order for making ten cast-iron containers according to the wooden pattern and core-box supplied by him. The appellant accepted that order and directed Mansukhram to carry it out. Accordingly Ratilal made ten barrel shaped containers of the type of article No. 16. According to Mansukhram and Ratilal article No. 16 is one of those. Each of those ten containers had a small hole at one end and a larger hole at the other end. Then about a week before the Divali, that is to say about November 2, 1942, accused No. 2 Ishwarlal wanted the appellant to have holes bored in eighteen screw caps which he had brought. There was no drilling machine in the appellant's foundry, and Somnath Pitambar, who was then present and who had a lathe factory, offered to bore the required holes in the screw caps. The appellant sent Mansukhram to Somnath's factory with the screw caps. It was found there that the drilling machine had been sent to Shantilal's factory on hire with Somnath's servant Mafatlal. So Mansukhram took the screw caps to Shantilal's factory and got them drilled by Mafatlal. They were then handed over to accused No. 2 ishwarlal who had been waiting for them in the appellant's foundry. The screw cap (article No. 2), which was found in the explosion of the bomb at Ghee Kanta Police Chowkey, is one of those eighteen screw caps. The same evening Ishwarlal again went to the appellant's foundry with a wooden pattern for screw caps and placed an order for a hundred screw caps of that pattern. Two or three days later, that is to say about November 4 or 5, Ishwarlal again went to the appellant's foundry with a wooden pattern of the type of a motor horn bulb and a core-box and placed an order for a hundred cast iron containers of that type. That pattern was identical with the pattern of the six containers which had been previously) prepared. He said that they were wanted before Divali. The appellant told him that he would get ready as many as possible and asked Mansukhram to work during the nights and get,them made The moulder Ratilal made eighteen containers of that type with the help of Din Dayal and Nima. The container of the bomb thrown at the Ellis Bridge Police Chowkey on November 6, 1942 (article No. 17) is one of them. Keshavlal also made six cast-iron sticks, each containing nine stoppers, to be converted into screw caps to fit the container's of the type of a motor horn bulb, Ishwarlal, however, did not turn up to take away the eighteen containers which had been kept ready. So the appellant removed them to his own house. In the meantime bombs had been thrown at different places, and the police had started to make a search in the foundries. When the appellant came to know this, he went to Mansukhram at 1 p.m. on November 9, 1942, and asked him to go to his house at once. When Mansukhram went to his house, the appellant took him to a small room in the dehla and showed him) a wooden box in which he had placed those eighteen containers. He brought a steel trunk from his house and asked Mansukhram to transfer the containers to the trunk. When Mansukhram did so, the appellant locked the trunk and asked him to remove it on the head of a cooly to Dr. Shivlal's residence. Mansukhram, however, told him that he would not be able to do so as all the foundries on the Ghee Kanta Road were being searched by the police. The appellant then said that in that case he would make some other arrangement. Mansukhram learnt in the evening that the trunk had been removed to Dr. Shivlal's house in his motor car.
4. On December 11, 1942, the appellant paid Mansukhram his wages for November and on the next day he discharged him from service saying that he did not want him. In the evening Mansukhram received his wages for ten days and directly went to the Delhi Gate [Police Chowkey to give information to the police. He met Sub-Inspector Malek there and told him that materials for making bombs were being manufactured in the appellant's foundry. Mr. Malek immediately went to the appellant's foundry with a police party, and just as they reached there, the appellant threw the wooden pattern for screw caps into the furnace. Mr. Malek's attention was drawn to it and he immediately rushed forward and picked it out from the furnace before it was completely burnt. Water was poured on it and it was secured. Mansukhram told him that it was a pattern for making screw caps for bombs. That is article No. 7 before the Court. Sticks of cast-iron stoppers were lying about near the furnace and one was picked up as a sample. A watch was kept on the foundry that night, and on the next day when the foundry: was searched, other similar sticks (articles Nos. 9 to 13) were found. The eighteen containers which are alleged to have been sent to Dr. Shivlal's house disappeared, and although the houses of the appellant and Dr. Shivlal were searched, they could not be traced.
5. The appellant was arrested on December 14 and produced before a Magistrate on the next day. He was subsequently arrested under the Defence of India Rules on December 21, 1942, and detained in police custody under Rule 129. When he was in such custody his confession was recorded by the City Magistrate, First Class, in the sub-jail on January 30, 1943. After completing the investigation the Sub-Inspector sent a charge-sheet against him on April 27, 1943. The bombs found were sent to the Inspector of Explosives and his opinion was received on June 12, 1943. The sanction for the prosecution of the appellant and Ishwarlal for offences under the Explosive Substances Act, as required by Section 7, was received from Government on July 13, 1943.,
6. It is contended on behalf of the appellant that the trial was illegal as it contravened the provisions of Section 233 of the Criminal Procedure Code which lays down that for every distinct offence there shall be a separate charge and that every charge shall be tried separately, except in the cases mentioned in Sections 234, 235, 236 and 239. The appellant and Ishwarlal were originally charged under Section 6 of the Explosive Substances Act, 1908, with the abetment of three offences punishable under Sections 3 and 4(a) of the said Act. This charge was framed ostensibly under Section 234 of the Criminal Procedure Code, 1908, which says :
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, whether in respect of the same person or not, he may be charged with, and tried at one trial for any number of them not exceeding three.
7. In the alternative the appellant was charged under Section 4(6) of the said Act. After the arguments on both the sides were heard, but before the opinions of the assessors were taken, it came to be noticed that according to the ruling in Emperor v. Janeshar Das (1929) I.L.R. 51 All. 544 this alternative charge was really an additional charge for a fourth offence and the appellant's trial for four offences contravened the provisions of Section 233 of the Criminal Procedure Code. Then at the request of the Public Prosecutor the charge under Section 6 read with Sections 3 and 4(a) was dropped as against the appellant, and his trial was confined to the charge under Section 4(6) only. It is now urged that the whole trial having proceeded on an illegal charge its amendment at the conclusion of the trial, just before the opinions of the assessors were taken, cannot cure the defect or make the trial legal. As observed in Manavala Chetty v. Emperor I.L.R. (1906) Mad. 569 although the words of Section 227 of the Criminal Procedure Code are wide enough to warrant a Court in altering a charge by striking out one of the charges at any time before judgment, the section does not warrant the striking out of a charge for the purpose of curing an illegality already committed, after the mischief which the Legislature intended to guard against had been done. In Fitzmaurice v. Emperor A.I.R.  Lah. 193 there was a misjoinder of four charges, but before the last witness was examined one charge was struck out. It was held that the illegality of the trial was not thereby cured and the conviction was set aside. We entirely agree with this view. A trial which has proceeded on an improper charge framed in contravention of the mandatory provisions of the Criminal Procedure Code cannot be rendered legal by a subsequent amendment of the charge at a late stage.
8. In the present case the original charge was faulty in more ways than one. It referred to Sections 3, 4(a), 4(b) and 6 of the Explosive Substances Act, 1908. The offences under Sections 3, 4(a) and 4(6) are distinct offences. Section 3 makes it punishable to unlawfully and maliciously cause by any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property. Section 4(a) prescribes punishment for unlawfully and maliciously doing any act with intent to cause by an explosive substance, or conspiring to cause by an explosive substance, an explosion in British India of a nature likely to endanger life or to cause serious injury to property. The offence punishable under Section 4(6) consists in unlawfully and maliciously making or having in one's possession or one's control any explosive substance with intent by means thereof to endanger life, or cause serious injury to property in British India, or to enable any other person by means thereof to endanger life or to cause serious injury to property in British India., Any person who by the supply of or solicitation for money, the providing of premises, the supply of materials, or in any manner whatsoever, procures, counsels, aids, abets, or is accessory to, the commission of any offence under the Explosive Substances Act is punishable under Section 6 of that Act.
9. The case for the prosecution is simple and clear. Accused No. 2 Ishwarlal placed orders with the appellant for a certain number of bomb shells (containers and screw caps). The appellant made them in his foundry and supplied them to accused No. 2. Those containers and screw caps were ' explosive substances ' as defined in Section 2 of the Act. Thereafter accused No. 2, either himself or through others, threw bombs made out of them in fourteen different places on different days. It is not disputed that these fourteen acts were distinct offences and they cannot be said to have been so connected together as to form one transaction; nor can they be said to have been one series of acts committed by the same person. So they could not be tried at one trial under Section 235 (12) of the Criminal Procedure Code. Hence only three of them were selected by the prosecution, so as to be tried at one trial under Section 234(1) of the Code. But the selection was unfortunate, since in one case the bomb exploded and caused some damage, while in the other two cases there was no explosion. The first was punishable under Section 3 and the other two under Section 4(a) of the Explosive Substances Act, 1908. Under Section 234 (2)' offences are 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. Hence these three offences, one punishable under Section 3 and the other two under Section 4(a) of the Act, cannot be said to be of the same kind and, therefore, they could not be tried at one trial under Section 234(1) of the Code. It follows that the abetment of these three offences under Section 6 also could not be tried at the same trial.
10. The wording of the first part of the charge is somewhat confused. It does not clearly set out the act or acts imputed to accused No. 2. All that it says is that the appellant abetted the three offences by making and supplying bomb shells at the instance of accused No. 2. That means that accused No. 2 abetted the offences committed by the appellant. This is true in the sense that it was he who ordered the appellant to make explosive substances and supplied them to him. The making of those explosive substances is itself an independent offence punishable under Section 4(b) of the Act and accused No. 2 should have been charged with the abetment of that offence. That would evidently be a fourth distinct offence. In fact the appellant was alternatively charged with the substantive offence punishable under Section 4(b) of the Act.
11. The learned Government Pleader contends that the making and the supply of the bomb shells and the throwing of them at different places on different occasions formed a series of acts so connected as to form one transaction, and the! ruling in Emperor v. Janeshar Das should not have been relied upon for dropping the charge under Section 6 read with Sections 3 and 4 (a) of the Act against the appellant. In view of that ruling, the Public Prosecutor in the Sessions Court seems to have thought that, since three offences' under Section 6 had already been combined under Section 234(1) of the Criminal Procedure Code, a fourth offence under Section 4(6) of the Act could not be joined with them under Sections 236(1) of the Code. The view of the Allahabad High Court that Sections 234, 235, 236 and 239 mentioned as exceptions in Section 233 of the Code are mutually exclusive is not shared by this Court. In Bal Gangadhar Tilak, In re I.L.R. (1908) 33 Bom. 221 .Scott C.J. observed (p. 238) :-
We find it difficult to believe that the Legislature intended that a joint trial of three offences under Section 234 should prevent the prosecution from establishing at the same trial the minor or alternative degrees of criminality involved in the acts complained of. For these reasons we think that the exceptions are not necessarily exclusive; and that Sections 235(2) and 236 may be resorted to in framing additional charges where the trial is of three offences of the same kind committed within the year.
12. In a later case (Emperor v. Shib Ckaran I.L.R. (1930) 53 All. 233 the Allahabad High Court came round to this view and held that these sections are not mutually exclusive but they can supplement each other. But in the present case the making of the bomb shells, which is punishable under Section 4(b) of the Act, and the throwing of the three bombs on different occasions, possibly by different persons, which the appellant is charged with having abetted, were not so connected as to form one and the same transaction.
13. The expression ' same transaction' is nowhere defined, and it is difficult to give a precise definition which can cover all kinds of cases. As observed by Broomfield J. in Shapurji Sorabji v. Emperor I.L.R. (1935) 60 Bom. 148 the word ' transaction ' is not intended to be interpreted in any artificial or technical sense, and common sense and ordinary use of language must decide whether on the facts of a particular case, one is concerned with one transaction or several transactions. It is, therefore, neither necessary nor advisable to attempt to define the expression which the Legislature has left undefined. But there is usually no great difficulty in deciding whether any particular acts constituted one transaction or not. Ordinarily a series of acts may be said to be so connected together as to form the same transaction when they are so related to one another in point of purpose or cause and effect or as principal and subsidiary acts as to constitute one continuous action. But, as observed in Emperor v. Ramchandra Rango (1938) 41 Bom. L.R. 98 a mere common purpose does not constitute a transaction, nor is the mere existence of some general purpose or design sufficient to make all acts done with that object in view parts of the same transaction. Thus in Emperor v. Krishnaji Dange : (1932)34BOMLR590 the accused first committed a theft in the complainant's cattle-shed and ten days later he broke into his house at night and committed theft there. The common purpose of both the thefts being to drive the complainant out of his house which the accused desired him to quit, the two thefts and the house-breaking were thought to be one and the same transaction and the accused was tried and convicted at one trial of two offences under Section 380 and one offence under Section 457 of the Indian Penal Code. It was held that Section 234 of the Criminal Procedure Code did not apply as the offences under Sections 380 and 457 of the Indian Penal Code were not offences of the same kind and that neither Section 235 nor Section 239(d) applied, since even if the common purpose alleged were proved, it did not make two perfectly distinct offences parts of the same transaction. The joinder was, therefore, held to be illegal, and the conviction was set aside.
14. So too in the present case, assuming that the appellant made the bomb shells and the screw caps for accused No. 2 with the purpose of enabling him to get them converted into bombs and thrown in different places on different days, all these acts cannot be regarded so connected as to form one transaction, especially because it is possible that those bombs were thrown by different persons not connected with each other. We must, therefore, hold that the charges of the abetment of one offence under Section 3 of the Act and two offences under Section 4(a) of the Act could not be combined under Section 234(2) of the Code as they were not offences of the same kind, nor could the offence under Section 4(b) of the Act be combined with them under Section 235(1) of the Code as they did not constitute one transaction. The charge as originally framed was, therefore, illegal and vitiated the whole trial, although an attempt was made to cure the defect at the fag end of the trial just before the assessors gave their opinions.
15. The next question raised is whether Section 537 of the Criminal Procedure Code does not cure the defect in the charge if it be shown that it has occasioned no failure of justice. In all the cases cited above, in which the mandatory provisions of Section 233 of the Code were found to have been infringed, the conviction was set aside on the ground that the infringement was fatal to the trial. That view was based on the decision of the Judicial Committee of the Privy Council in N.A. Subrahmania Iyer v. King-Emperor . In that case the accused was tried by a Judge of the Madras High Court and a jury, and convicted on an indictment in which he was charged with no less than forty-one acts, extending over a period of two years, in contravention of the provisions of Section 234 of the Criminal Procedure Code. On his conviction, there was an appeal to the Full Court on a certificate by the Advocate General under Clause 26 of the Letters Patent. It was held by the Full Court that it had power to strike out the extra charges and come to a conclusion as to whether there was sufficient evidence to support the three charges which were left. But their Lordships of the Privy Council held that this could not be done as there had been a disregard of an express provision of the law as to the mode of trial and that the trial was illegal In setting aside the conviction the Lord Chancellor observed (p. 263):
Their Lordships cannot regard this as cured by Section 537.
Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity. Such a phrase as irregularity is not appropriate to the illegality of trying an accused person for many different offences at the same time and those offences being spread over a longer period than by law could have been joined together in one indictment.
16. This has been interpreted as laying down that a misjoinder of charges is fatal to the trial, whether it has caused a failure of justice or not (Emperor v. Raman Lal I.L.R. (1926) All. 312. The same view was taken by Beaumont C.J. in Emperor v. Krishnaji Dange : (1932)34BOMLR590 . At pp. 592-93 he said :-
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.
17. But Broomfield J. thought that it was not clear that their Lordships of the Privy Council intended to lay down that the misjoinder of charges was necessarily a fatal defect where there had been no prejudice caused thereby to the accused (p. 594). He re-affirmed that view in Shapurji Sorabji v. Emperor, to which my learned brother was a party. Although since the ruling in N.A. Subramania Iyer v. King-Emperor it is usual to assume a failure of justice to the accused whenever a mandatory provision of the Code is infringed in the framing of the charge, such an assumption is contrary to the spirit of Section 537 which is intended to avoid unnecessary re-trials where no prejudice has in fact been caused to the accused.
18. In Abdul Rahman v. The King-Emperor (1926) L.R. 54 IndAp 96 Lord Phillimore distinguished Subrah-mania Iyer's case on a somewhat similar ground and said (p. 109):
The distinction between that case and the present is fairly obvious. The procedure adopted was one which the Code positively prohibited, and it was possible that it might have worked actual injustice to the accused.
19. This remark, as observed in Ramaraja Tevan, In re I.L.R. (1930) Mad. 937 clearly indicates that the 'impugned procedure must not only have been prohibited by the Code, but must have actually resulted in failure of justice to the accused. In Abdul Rahman's case, although the provisions of Section 360 of the Criminal Procedure Code that the deposition of each witness must be read over to him in the presence of the accused or his pleader was infringed, the defect was held cured by Section 537, as the course pursued was merely an irregularity and no failure of justice had been occasioned. In that case the question was whether special leave to appeal to the Privy Council should be granted, and it was held that according to the well established practice of the Privy Council appeals in criminal cases were allowed only when it was shown that substantial and grave injustice had been done. Hence the decision in that case cannot be said to have overruled N.A. Subrahmania Iyer v. King-Emperor. So in Emperor v. Krishnaji Dange : (1932)34BOMLR590 Broomfield J., after expressing his opinion already referred to above, said l(p. 594) :-
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 illegality cannot be cured by Section 537.
20. So, too, in Shapurji Sorabji v. Emperor it was found that the misjoinder of charges had in fact prejudiced the accused, and Broomfield J. expressly stated that he did not think it necessary to decide whether the breach of the provision of Section 235 of the Criminal Procedure Code in itself would necessitate a quashing of the conviction. Although he expressed a doubt on the point, in N.A. Subrahmania Iyer v. King-Emperor the Lord Chancellor left no doubt about it when he said (p. 263):-
The remedying of mere irregularities is familiar in most systems of jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes within the description of error, omission, or irregularity.
21. These and other pertinent observations in that case were definitely intended to make it clear that a charge framed in contravention of the mandatory provisions of Sections 233, 234, 235, 236 and 239 is illegal, and though no failure of justice may have been thereby occasioned, the defect is not one which can be condoned under Section 537 of the Criminal Procedure Code. The appellant's conviction has, therefore, got to be set aside.
22. It is next urged that since the appellant has been in jail since December 12, 1942, and has been undergoing rigorous imprisonment since November 13, 1943, he has suffered enough and his retrial should not be ordered. On the other hand it is urged by the Government Pleader that even the sentence of two years' rigorous imprisonment imposed on the appellant is inadequate and an application has been made for enhancement of that sentence. Without expressing any opinion as to what punishment would be sufficient, if the appellant is convicted again, we have no doubt that the offence charged against him is very serious and what he has already suffered is not sufficient to meet the ends of justice, especially if he is allowed to get off without the stigma of a conviction. This is a case which undoubtedly calls for a re-trial.
23. We, therefore, set aside the appellant's conviction and the sentence passed on him and direct that he be tried again according to law. The rule issued on the application for enhancement of sentence is discharged.