Lallubhai Shah, J.
1. (October 8, 1926.)--This is an application by two accused persons, who were charged with having given false evidence in the course of their statements in a suit filed on the Original Side of this High Court. The charges against accused No. 1 were two, first, that he made a false statement 'Not true that I then deducted Rs. 750 for first ten months' interest'; and secondly, that he made the following false statement, 'No letter was brought to me along with that cheque. I got no letter from defendant in which he alleged we had deducted Rs. 750.' The charge against accused No. 2 was that he made the following statement which he knew or believed to be false, 'Not true that Rs. 750 deducted for interest.' There was separate charges against each of the accused.
2. In the suit in which the two accused gave evidence, one of the questions raised at the instance of the defendant in that case was whether the sum of Rs. 750 was paid back by him as interest at the time of the loan. The trial Court having made a complaint under Section 476, Criminal Procedure Code, in respect of these statements, these proceedings were started against the accused in the Court of the Chief Presidency Magistrate, and the charges were framed against each of the accused, as above indicated. The learned Magistrate, after considering the evidence, came to the conclusion that these statements were proved to be false to the knowledge of the accused persons, and, accordingly, convicted them under Section 193, Indian Penal Code, and passed sentences against accused No. 1 of three months' and one month's rigorous imprisonment and against accused No. 2 of three months' rigorous imprisonment respectively.
3. The present application has been filed by the accused for a revision of these convictions and sentences. The first point of law raised on behalf of the applicants is that the joint trial of the two accused persons in respect of each one giving false evidence with reference to the particular statement is not legal. In support of this contention reliance is placed upon the decisions of this Court in Reg v. Bhavani-shankar Haribhai 5 B.H.C.R. Cr. C. 55 and King-Emperor v. Krishnarao 4 Bom. L.R. 53. Secondly, it is urged that the two charges against accused No. 1 in respect of two statements made in the course of the same deposition are not legal; and that the offence committed by the accused in respect of these statements is really one offence. And reliance is placed upon Rakhal Chandra Laha v. Emperor 2 Ind. Cas. 697 : 36 C. 808 : 9 C.L.J. 690 : 13 C.W.N. 942 : 10 Cr. L.J. 150. For the purpose of this judgment I need not state the further point raised as to the merits of the case.
4. We have heard the Government Pleader in respect of the first two points without hearing the applicants as to the last point relating to the merits. As regards the first point it is urged on behalf of the Crown that these depositions were given with reference to a suit, which related to a promissory note, in which both the accused persons were interested, and that the evidence given in support of the suit by these two persons must be treated as given in the course of the same transaction, that transaction being the suit or the claim made in the suit, and that the joint trial was permissible under Section 239(a), Criminal Procedure Code. As regards the second point, it is urged that if a witness makes more statements than one which are false, and which he knows to be false in the course of the same deposition he commits not one offence, but as many offences as the false statements he makes in the course of his deposition.
5. As regards the first point, I am of opinion that the applicants' contention is correct. It is supported by the decisions of this Court, to which reference has been made, and it is possible to refer to cases of other High Courts also to the same effect. It is not necessary, however, to do so. In this Court the view taken in these cases has been consistently followed so far as I am aware. The mere fact that the evidence is given by two or more witnesses with reference to the same purpose or to the same point involved in any judicial proceeding, either a suit or a criminal case, has not been held to be sufficient to justify the joint trial of different persons as to statements made by them separately in that proceeding. The deposition in the course of which the statement is made is a transaction by itself, and each witness making a statement in the witness box acts on his own account, and it is that act of his for which he is to be prosecuted. There may be cases in which the prosecution may allege abetment of perjury or conspiracy to commit perjury, and the evidence may be given as a part of the conspiracy formed by several persons together. In such a case on proper allegations it may be possible to secure a joint trial in respect of charges relating to making false statements in the course of depositions by different persons. As an illustration of this position, I may refer to the decision in Emperor v. Ganesh Narayan Dikshit 17 Ind. Cas. 705 : 14 Bom. L.R. 972 : 13 Cr. L.J. 833 where one of the accused persons who had given evidence in a criminal case to support a false charge which was laid as a part of the scheme which was formed by several accused persons, and the evidence was given by the particular accused as a step in the carrying out of that scheme. In the present case there is no such allegation, and the depositions of the two witnesses also do not disclose any such case.
6. It may be mentioned that in the complaint of the Court, which tried the suit, reference is made to offences under Sections 193, 209 and 210, Indian Penal Code, or attempt to commit offences under Sections 209 and 210 read with Section 511, Indian Penal Code, as regards accused No. 1 and the particular statements made by accused No. 1 are set forth. As regards accused No. 2 the offence referred to is one under Sections 193, Indian Penal Code, and the particular statement is mentioned. There is no reference there to any abetment of the offence of one accused by another nor is there any reference to any conspiracy between the two as regards the giving of false evidence. In the evidence given at the trial by the defendant in the civil suit, there is no reference to any such allegation of abetment or conspiracy. Beyond the statement that at the time of the loan, both the accused were present, there is nothing to suggest that his allegation was that either accused abetted the other or that there was a criminal conspiracy between the two to give false evidence. The learned Chief Presidency Magistrate charged each accused separately, as the charges framed clearly show.
7. It is urged, however, that as these statements were made with reference to a suit, these accused persons had a common purpose to carry out and the joinder of charges would be permissible under Section 239, Clause (a), Criminal Procedure Code. This aspect has been considered in King Emperor v. Krish-narao 4 Bom. L.R. 53 and in that case the learned Judges could not see their way to hold the trial to be legal, and they relied upon the decision in Subrahmania Iyer v. King-Emperor 28 I.A. 257 : 3 Bom. L.R. 540 : 25 M. 61 : 11 M.L.J. 233 : 5 C.W.N. 866 : 2 Weir 271 : 8 Sar. P.C.J. 160 in support of their conclusion. Thus, to my mind, according to the decisions, the joinder of charges in this case cannot be justified under Section 239, Clause (a), (6) or (d), Criminal Procedure Code, on the allegations of the prosecution. As regards the prejudice to the accused I do not think that it is necessary to go into this question. But if it were necessary I should say that it is very difficult to say that the joint trial may not prejudice the accused. For instance, in this case, the offence of accused No. 2 is quite distinct and there is a good deal in the case as regards the second charge against accused No. 1 as to which it would be difficult to say that it would not prejudice the case of accused No. 2. I am of opinion that the joint trial of these two accused persons on two distinct offences punishable under Section 193, Indian Penal Code, is not legal.
8. As regards the second point, I think it is one of minor importance in the case. Whatever view may be taken of that point, it really affects the question of sentence only under the circumstances of this case, The observations of Jenkins, C.J., and Mookerjee, J., in Rakhal Chandra Laha v. Emperor 2 Ind. Cas. 697 : 36 C. 808 : 9 C.L.J. 690 : 13 C.W.N. 942 : 10 Cr. L.J. 150Page of 36 C.--[Ed. of the report show that the making of any number of false statements in the same deposition is one aggregate case of giving false evidence, and such charges of false evidence cannot be multiplied according to the number of false statements contained in a deposition. Under the circumstances of this case, I do not desire to express any final opinion on this point.
9. In my view the convictions and sentences should beset aside and the accused should be ordered to be re-tried separately.
10. I may state that I have come to this conclusion without hearing the applicants on the merits. Having regard to the nature of the case, and the nature of the point, which vitiates the trial, that is the order which I would make.
11. (October 8, 1926).--I quite admit that there are numerous rulings under which the ordinary rule is that persons who are charged with perjury, even though the alleged false statements were made in the course of the same trial should be tried separately; and I have no desire to question those rulings, so long as they are applied within reasonable limits. But at the same time this Court has recognized that there may be cases where a joint trial may be properly held. Thus, in the case cited by the learned Counsel for the applicants, viz., King-Emperor v. Krishnarao 4 Bom. L.R. 53 the Court in its judgment referred to the possibility of an exception to the general rule. They say that in that particular case (page 54 Page of 4 Bom. L.R.--[Ed.]):--'There was no charge of mutual abetment or conspiracy such as under Section 239 (Criminal Procedure Code) might possibly have justified a joint trial. The circumstances it is true, may have given fair ground for suspicion of pre-arrangement but it is clear that in neither case (i.e., the case of either accused) was there any evidence on which a charge of abetment could have been sustained.'
12. Again in the case referred to in my learned brother's judgment, viz., Emperor v. Ganesh Narayan Dikshit 17 Ind. Cas. 705 : 14 Bom. L.R. 972 : 13 Cr. L.J. 833 it was held that Section 239, Criminal Procedure Code, was distinctly applicable, inasmuch as there was one sustained and continuous plot for the purpose of screening the real offenders in a certain robbery, and that to secure that end various means had to be resorted to, one of which was the giving of false evidence. There was complete unity of project and the whole series of acts were so linked together by one motive and design as to constitute one transaction within the meaning of Section 239, Criminal Procedure Code. Reference is made to the decision in Emperor v. Datto Hanmant 30 B. 49 : 7 Bom. L.R. 633 : 2 Cr. L.J. 578 where it was held that the main test for judging of what was 'the same transaction' was not necessarily proximity in time, so much as continuity of action and purpose.
13. In the present case, I think it is important to see exactly what is alleged by the prosecution and has been found proved by the Magistrate. In doing this, I only take what is apparent from the judgment, without prejudice to the question whether the findings of the learned Magistrate are open to revision on the merits.
14. It is common ground that the executant of the promissory note by name Awte, and the two accused, were all three present when the note was passed. Awte says that in spite of the note being for Rs. 5,000, as a matter of fact Rs. 750 were deducted for advance interest. The accused deny that and say that the full amount of Rs. 5,000 was paid to Awte. The circumstances, therefore, are such that one of the two stories must he false. There can be no question of any mistake.
15. Accused No. 1 brought a suit, as a member of the firm in whose favour the promissery note had been passed, to recover a certain amount from Awte on the basis that full consideration of Rs. 5,000 had been paid. He gave evidence to the effect that that consideration had been in fact paid, and denied Awte's allegation that Rs. 750 had been deducted. Accused No. 2 admittedly is a member of a firm, which had a half interest in this loan to Awte. He also went into the witness box and deposed that full consideration was paid, and denied Awte's allegation as to the deduction of Rs. 750. That was in support of the plaintiff's case that full consideration as mentioned in the promissory note had been paid.
16. Now supposing that accused No. 1 had succeeded in obtaining a decree for the full amount due on the basis of Rs. 5,000 having been paid at the time of the promissory note, when in fact only Rs. 4,250 were paid, then the case clearly falls under Section 210, Indian Penal Code, that is, fraudulently obtaining a decree for a sum not due. In the present case the suit did not succeed, and, therefore, supposing the facts are as found by the Magistrate, it would only be a case of attempting to commit this offence under Section 210, Indian Penal Code.
17. I have already mentioned that the second accused had a joint interest in the loan, and if the promissory note had been passed in favour of the two firms that really advanced the money jointly, then he also would have been a plaintiff in the suit. It is simply due to the omission of the name of the other firm in the note that he was not himself a plaintiff. But he does appear as a witness in the case, and necessarily an important witness, and he supports the story of the first accused. On the facts found, that is equivalent to saying that he intentionally aided the first accused in committing an offence under Sections 210 and 511, Indian Penal Code. Certainly it is to my mind, clear, in view of the fact that admittedly the two accused were both present at the time the consideration for the note was paid, that the case would fall, first, under Section 34, Indian Penal Code, which says: 'When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.' In this case, one of the two persons made a false claim and the other gave false evidence in furtherance of the common intention to obtain a fraudulent decree for an amount not due. Secondly, it seems to me that the case obviously comes under Section 107, Indian Penal Code, in that either the second accused engaged in a conspiracy with the other accused for the doing of the act in question, or he intentionally aided in the doing of that act by going into the witness box and swearing falsely in support of the first accused's case. Thirdly, it seems Co me that the case would fall under the new Section 120-A relating to criminal conspiracy and that accused No. 2 could have been prosecuted under Section 120-B, Indian Penal Code. Therefore, to say, in the circumstances of the present case, that because there has not been a charge such as there might have been of conspiracy or abetment, the joint trial is illegal, seems to me to be perverting the rulings of this Court to an absurd and unreasonable extent. In my opinion, on the allegation of the prosecution, and on the facts found, there is no sufficient reason for saying that the case does not properly fall within Clause (a) of Section 239, Criminal Procedure Code, namely, that the two accused are persons accused of the same offence committed in the course of the same transaction, i.e., the transaction in which there was an attempt by a suit to obtain a fraudulent decree for an amount not due. There was continuity of purpose, which satisfies the test laid down by this Court as to what is the same transaction.
18. It is said that there is no allegation in the complaint of the charges of consipiracy or abetment. In my opinion this is immaterial. The complaint did refer to Sections 209 and 210, Indian Penal Code, and the facts admitted and held proved establish of themselves abetment by accused No. 2, which covers conspiracy (Section 107, Indian Penal Code). As pointed out in Barindra Kumar Ghose v. Emperor 7 Ind. Cas. 359 : 37 C. 467 at 11p. 507 : 14 C.W.N. 1114 : 11 Cr. L.J. 453.:
Though to establish the charge of conspiracy there must be agreement, there need not be proof of direct meeting or combination, nor need the parties be brought into each other's presence; the agreement may be inferred from circumstances raising a presumption of a common concerted plan to carry out the unlawful design.
19. Res ipsa loquitur in the present case. It seems to me quite clear that there need not be a distinct accusation of abetment or attempt to bring the case under Section 239(a) for other wise Clause (6) of that section would be unnecessary. Here, there certainly was an accusation that an offence had been committed by accused No. 1 under Sections 209 and 210, read with Section 511, Indian Penal Code, and though the complaint did not specifically allege that accused No. 2 had committed abetment of that offence both the accused were alleged to have given false evidence in regard to the claim for Rs. 750 and for the purpose of supporting that claim. The findings of the Magistrate should be looked into for seeing if the parties could legally be jointly tried: cf. Asutosh Das Gupta v. Purna Chandra Ghose 71 Ind. Cas. 670 : 50 C. 159 : 36 C.L.J. 287 : A.I.R. 1923 Cal. 11 : 24 Cr. L.J. 206. On these findings abetment by accused No. 2 is clearly established, though there was no charge framed. But a charge is not made a condition precedent to abetment being a link which brings a case under the expression 'the same transaction' in Section 239. In my opinion it is the proved and or admitted facts which show abetment (not the formulation of a charge of abetment) that have to be considered for deciding whether the acts of two or more accused form part of 'the same transaction.' This is recognized in King Emperor v. Krishnarao 4 Bom. L.R. 53 where the Court referred to there being no evidence on which a charge of abetment could have been sustained, as well as to the absence of a charge of abetment. Similarly, in Tepanidhi Gobinda Chandra Bharati v. Emperor 54 Ind. Cas. 769 : there was no charge of abetment, but the Court considered whether the evidence showed a continuity of action or purpose between the acts committed by the three accused, and held that if the Crown had been able to show by evidence some association between them, acting for a common purpose in execution of a common design, then the charges against the respective accused might be jointly tried and disposed of together. Such continuity of purpose and association is fully established on the facts found and admitted in the present case.
20. Accordingly, I do not agree with my learned brother that the joint trial of the two accused should, in the circumstances, be held illegal.
21. I admit that, on the ruling of this Court in King-Emperor v. Krishnarao 4 Bom. L.R. 53 by which we are bound, the joint trial must be held to be illegal, if it does not fall within Section 239, Criminal Procedure Code, although at the same time, if this or a similar case goes before a Full Bench, I think, it might be considered whether the ruling in Subrahmania Iyer v. King-Emperor 28 I.A. 257 : 3 Bom. L.R. 540 : 25 M. 61 : 11 M.L.J. 233 : 5 C.W.N. 866 : 2 Weir 271 : 8 Sar. P.C.J. 160 can properly be applied to a case like the present, where no objection is taken in the lower Court, and the point is raised for the first time in revision, and where the evidence against the two accused is exactly the same, so that it is a pure waste of time and money to have separate trials.
22. No doubt it can be said that, if you have separate trials, each accused can call the other to give evidence in support of his case. That was a point that was made, I see, by the Pleader in Reg. v. Bhavani-shankar Haribhai 5 B.H.C.R. Cr. C. 55. But that certainly is not in itself a sufficient basis for saying there is prejudice, in a case where the accused do not themselves object to a joint trial and where there is legitimate ground for thinking the case falls under Clause (a) of Section 239, Criminal Procedure Code.
23. A point was made that there was a second charge against the first accused of another false statement in his deposition, with which the second accused had no concern. If Section 239 applies, then it is perfectly clear from the illustrations to that section that the two accused may be tried together, both of them being charged with the common false statements which they made, and the one accused being charged also with the alleged false statement with which alone he was concerned.
24. It has also been urged that if a person makes twenty false statements in a deposition, he can only be tried and charged with one offence of perjury. No doubt, there is authority for that statement. Speaking for myself, it seems to me an absurd proposition. I want to except a case where a second, third or fourth false statement repeats merely in another form the first false statement. Then, of course, there is one offence. But take the case of a man who first makes one deliberate false statement at 4 o'clock, his cross examination continues and at 5 o'clock he makes another false statement on another subject, are you going to say that he has not committed separate offences? I say he has committed two separate offences. The mere fact that they are included in one deposition does not make it any the less two offences. The case is analogous to that of an assault or beating, where fifty blows are inflicted. The Indian Penal Code in Section 71 recognizes that each blow can be treated as a separate offence, but lays down limitations as to punishment. So I certainly do not agree that accused No. 1 could not be separately tried and convicted for two false statements on different subjects in one deposition, in accordance with Sub-section (1) of Section 235, Criminal Procedure Code. cf. Queen-Empress v. Kabhai Rat. Un. Cr. C. 336 : Cr. Rg. No. 26 of 1887.
25. In view of the difference of opinion between my learned brother and myself on the fundamental question which relates to the legality of the trial, we think that a situation has arisen, in which, without our going into the merits, the case may be laid before a third Judge under Section 439(1) read with Section 429, Criminal Procedure Code. The same bail as regards both the accused to continue during the pendency of this application.
26. The Reference came on for hearing before Mr. Justice Crump and the following judgment was passed.
27. Mr. Little, for the Accused.
28. Mr. P.B. Shingne, Acting Goverment Pleader, for the Crown.
29. (November 17, 1926).--Three points were suggested by Mr. Little on behalf of the accused as arising for determination in this case. Briefly they are as follows:
(1) Were the accused properly charged and tried together?
(2) Could accused No. 1 be convicted of two offences with reference to two false statements made in the course of one and the same deposition?
(3) Were the accused properly convicted on the merits?
30. Upon the first point the learned Judges who formed the Divisional Bench have differed. On the second point there is no expressed difference of opinion, for Shah, J., has refrained from answering the question. The third point has not been dealt with at all. This being so I have heard arguments on the first point only, for if I agree with the view expressed by Shah, J., the other points will not arise. If, however, I hold that there is no fundamental error in the trial the whole case is open to me, so at least 1 understand Section 429 of the Code of Criminal Procedure. I would, however, with all deference, remark that the course which has been followed in this case is likely to lead to inconvenient results. I am not aware of any previous case where a point of difference has been referred under Section 429 where such difference does not necessarily involve conflicting decisions as to the disposal of the whole case.
31. The rule applicable here is contained in Section 239(d) of the Code of Criminal Procedure. I would apply this clause rather than Clause (a) for the words 'the same offence' in Clause (a) appear to me to indicate the same physical act of crime. But for the purposes of the present case it makes no difference whether the matter falls under Section 239(a) or 239(d) If the two acts of giving false evidence were committed 'in the course of the same transaction' these two persons could be charged and tried jointly. The Legislature, though more than once invites to do so, has studiously, and I think, speaking with all respect, wisely refrained from attempting a definition of the phrase 'in the course of the same transaction.' Each case must (in my opinion) be considered on its merits, and, therefore, it is peculiarly true here that no case can be an authority except upon its own facts. The test,. I take it, is whether the two persons concerned are engaged in one transaction, and to determine that it is necessary to regard the facts from the point of view of those two persons. If they are animated by a common purpose, and there is continuity in their actions, then surely there is one transaction so far as they are concerned. It may even be that community of purpose is not necessary, but I speak strictly with reference to the alleged facts of this case. Put shortly those facts are as follows:
32. Accused No. 1 was the plaintiff in a suit on a pro-note executed by one Awte. The defendant Awte pleaded that Rs. 750 had been deducted as interest at the time of execution. Both the accused swore that Rs. 750 had not been deducted as interest. It has been found that the evidence so given was untrue to their knowledge. The Magistrate has found that the two accused were partners in this transaction, and it is at least conceded that accused No. 2 was interested in the sense that he had advanced part of the consideration to accused No. 1. Both learned Judges assume for the purposes of this question that there was a common purpose in pursuance of which each of these persons gave false evidence. It is, no doubt, true that each act of giving false evidence is the act of the person giving that evidence, and, therefore, the transaction of that person, but it does not (in my opinion) follow that there is not a major transaction, so to speak, embracing these two minor transactions. If there was a common purpose to make out a false claim so far as concerns the sum of Rs. 750 then it seems to me that from the point of view of these two persons there was one transaction.
33. If the reported cases are examined they do not (in my opinion) suffice to establish as an universal rule that in no case can two persons each of whom has given false evidence be jointly charged and tried for these offences. Reg. v Bhavanishankar Haribhai 5 B.H.C.R. Cr. C. 55 was decided in 1868. The Criminal Procedure Code of 1861 was then in force, and I cannot find in it any provision corresponding to Section 239 of the present Code. That provision first appears in Section 458 of the Code of 1872, and the statutory provision if applicable overrides any earlier judicial decision. The case of King-Emperor v. Krishnarao 4 Bom. L.R. 53, was decided in 1902 when the Code of 1898 was in force. And Section 239 of that Code as it then stood substantially reproduced by the amending Acts of 1923. But I fail to find any universal rule laid down in that decision. The facts are not stated with sufficient fulness to make it possible to deduce any such rule and the language of the judgment does not indicate that any question arose there whether the offences were or were not committed 'in the same transaction.' I cannot regard that case as binding upon me with reference to the facts here. What was in reality decided was that the facts of that case did not fall within the provision which now appears as Section 239(b). The other cases cited turn strictly upon their own facts, and are thus distinguishable. In my opinion, therefore, there is no authority which can be invoked beyond the words of the Legislature, and applying those words to the facts found by the Magistrate I agree with Fawcett, J. that there is no fundamental illegality which vitiates the trial. I would only add that this conclusion is without prejudice to any opinion which I may form upon the merits of the case.
34. The matter will stand over for further hearing on two other points raised.
35. The case was heard on the two remaining points by Crump, J., on 30th November, 1926.
36. Mr. Jinnah, for the Accused.
37. Mr. P.B. Shingne, Acting Government Pleader, for the Crown.
38. After hearing Mr. Jinnah on the two points reserved in my judgment of November 17, though this is not an appeal I have allowed the merits to be fully argued. I can find no reason to suppose that the Magistrate has committed any error of law in arriving at his conclusions. This Court can, no doubt, in revision consider how far findings of fact are justified though in practice it is unusual to do so. It is enough to say that I have examined the record and that I feel that the Magistrate's findings of fact are in all probability correct. There is. therefore, no ground for interference.
39. As for the remaining point I am unable to see that it has any substance. A deposition is one transaction. Each lie (to put it shortly) told in a deposition is an offence. The case is thus covered by Section 235(1) of the Code of Criminal Procedure. Section 71 of the Indian Penal Code was invoked but the case is not within that section at all. The first paragraph might at first sight seem to apply, but that could only be so if the whole deposition were an offence. It is no offence to make a deposition in Court. The offence, if any, is confined to any false statement made in the course of such deposition. The case in Illustration (a) to the section is a different case. There the whole beating is an offence and each of the fifty strokes making up the whole is also an offence. With all deference I see no real analogy between this case and the case in Illustration (a). Here the two statements are as to two separate and unconnected matters and, in such a case at least, I see no reason why an accused person cannot be tried and convicted for each offence.
40. The bail-bonds must be cancelled and the accused remanded to custody to serve the unexpired period of their sentence.