1. This is a revision by Tirlok Chand and ten others against their conviction under B. 81 (4), Defence of India Rules, read with Section 2, U. P. Sugar Movement Control Order, 1945, and Section 7, U. P. Gur Control Order, 1945.
2. The case for the prosecution was that the police of thana Baraut received information that certain persons would export gur and sugar from, the United Provinces to places outside the United Provinces by crossing the river Yamuna near Ghat Jhankar, Consequently, on the night between 1st and 2nd June 1946 the Sub-Inspector along with some constables and other people lay in wait near the ghat to intercept the smugglers. At about 2 A. M. they saw a herd of fifty-eight donkeys most of which were laden with bags crossing the river. The eleven applicants were looking after, these donkeys. When some of the donkeys had gone into the river-bed along with four or five applicants, the police surrounded them and arrested the eleven applicants. The bags which were loaded on the donkeys were taken in possession. There were sixty-one bags in all containing more than sixty maunds of gur and sugar. A recovery list was prepared and the applicants were prosecuted jointly because the case of the police was that they wore the joint owners of the gur and sugar and were exporting the same jointly outside the United Provinces.
3. The case was tried summarily and ended in the conviction of the applicants. In appeal, the learned Judge did not vary the conviction or the sentence.
4. So far as the findings of fact are concerned, there is no reason to differ from the Courts below. It must be accepted that the applicants were crossing the Yamuna with the gur and sugar and going outside the United Provinces when they were arrested. Their story that they were arrested elsewhere has been rightly disbelieved. Three points have been urged on behalf of the applicants. The first is that the joint trial of all the eleven applicants was illegal and, therefore, their conviction should be set aside. There is no doubt that for every separate offence there has to be a separate charge and separate trial under Section 233, Criminal P. 0., unless it is permissible to hold a joint trial under Section 239 of the same Code. Under Section 239 (a), persons accused of the same offence committed in the course of the same transaction can be charged and tried together. It has, therefore, to be seen whether these persons were accused of an offence committed in the course of the same transaction. It has been urged that there is no evidence to show that these persons had conspired together to export this sugar and gur from the United Provinces to the Punjab and, therefore, there could not be a joint trial Under Section 239 (a), Criminal P. C. The law on this point, however, has been set at rest by the pronouncement of their Lordships of the Privy Council in the case of Babulal Choukhani v. King Em. peror, reported in . Their Lordships after defining what the same transaction meant, observed as follows:
The accusation being necessarily anterior to the discretion to charge and try and the charges have to be framed at an early stage of the proceedings, the court should proceed to trial oh the basis of what appears on the face of accusation.
To give jurisdiction, therefore, to a Magistrate to try several persons jointly under Section 239 (a), Criminal P. C, one has to look to the accusation. In this case the accusation in the charge-sheet submitted by the police was that all the applicants were joint owners of the gur and sugar. On that allegation, this was clearly covered by 8,239 (a) because if they were all joint owners of the gur and sugar, they were clearly taking part in one and the same transaction of transporting gur and sugar outside the United Provinces. The fact that later evidence has disclosed that this was probably not correct, would not go to the root of the matter and would not make the trial illegal. We have, therefore, to consider whether there was any prejudice which necessitates a retrial. We are satisfied in this case that from the nature of the things, there could be no prejudice to the applicants. The accusation was the same against all of them, namely, that they were all going together, were joint owners of the gur and sugar. The witnesses were also the same and they were arrested together. Under these circumstances the joint trial of the applicants cannot be held to be illegal. The irregularity, if any, is curable under Section 537, Criminal P, C, as there was no prejudice to the applicants in the circumstances of this case.
5. The next point that has been urged on behalf of the applicants is that there was no application to the Magistrate, who finally tried this case, praying that the case should be tried summarily. Under Section 130 (i), Defence of India Rules
any Magistrate ... empowered. ... to try in a summary way. . . . may if such Magistrate thinks fit on application in this behalf being made by the prosecution, try a contravention of any such provision of these Rules or any order made thereunder as the Central Government may by notified order specify in this behalf in accordance with the provisions contained in 8s. 262 to 265, Criminal P. C.
It appears that this case was originally before another Magistrate, Mr. Jouhary. Before the evidence began to be recorded on 15th August 1946, the prosecuting inspector made a request to the Magistrate to try the case summarily. This request of his is noted in the remarks column of the order-sheet for 15th August 1946. Thereafter Mr. Jouhary began to try the case summarily. It seems that, he was transferred soon after and the case then came up before Mr. Verma who eventually finished it. It was put up before Mr. Verma for the first time on 23rd October 1946. The order-sheet of that date shows that Mr. Verma noted that the case had been tried summarily, but that there were no notes on the record and, therefore, he ordered that the case should recommence and the witnesses should be resummoned. It has been urged on behalf of the applicants that as Mr. Verma ordered that the case should recommence and the witnesses should be resummoned, there should have been a fresh application before him for trying the case summarily as required by Rule 130 (4), Defence of India Rules, We are of opinion that no such fresh application was necessary. There was already an application by the prosecution for trying this case summarily before the first Magistrate. What the second Magistrate was doing was merely to recommence the enquiry, after resummoning the witnesses, from the stage where a trial commences, namely, where the evidence is going to begin. All proceedings before that stage cannot be wiped out and in this case an application for trying the case summarily was, in the nature of things, made before the evidence actually began. It may also be noted that the second Magistrate, namely, Mr. Verma had also present before his mind that the ease was being tried summarily. Under these circumstances if an application for trying the case summarily was already made to the first Magistrate and further the matter was present before the mind of the second Magistrate, we think that summary trial by the second Magistrate is not illegal and the conviction can-not be set aside on that ground.
6. The last point that has been urged on be-half of the applicants is that their conviction under B. 81 (i), Defence of India Rules, is illegal because they had not actually committed the offence as they were still in the bed of the Yamuna and had not crossed over to the other side, namely, the Punjab. So far as that is concerned, E. 121, Defence of India Rules provides that
any person who attempts to -contravene ... any of the provisions of these Rules or of any order made thereunder shall be deemed to have contravened that provision, or as the case may be, that order.
The charge, as submitted, was under E. 81 (4)/ 121, Defence of India Rules, only. The Magistrate, in his judgment, mentioned only B. 81 (4). But it was open to him, on the facts placed before him, to say that the charge was under B, 121, Defence of India Rules also. The mere fact that the learned Magistrate had not mentioned E. 121 in the judgment at the end-there of course being no normal charge in the case-would not invalidate the trial.
7. We now come to consider the cases of the individual applicants. So far as Harphool is concerned, it appears from the recovery list pre-pared by the police that his donkeys, if there were any, had no gur or sugar on them. There, fore, as the evidence shows that the gur and sugar were not owned jointly but that a good bit of the same was owned by Tirlok Chand and the rest by the other applicants, the conviction of Harphool who had no gur and sugar at the time that the police arrested the party is incorrect. Consequently the revision of Harphool should be allowed. As for Malkhe, Khachcheru, Charna and Birbal, they were merely carriers on behalf of Tirlok Chand, In their case, it is not necessary that they should be sent to jail. As regards the other applicants, namely, Tirlok Ghand, Bholu, Mani Earn, Hari Singh, Budhoo and Earn swarup, we see no reason to interfere with the sentence.
8. The result, therefore, is that we allow the revision of Harphool, order his acquittal and set aside the sentence of imprisonment as also of fine passed against him. We partly allow the revision of Malkhe, Khacbcheru, Charna and Birbal and set aside the substantive sentence of imprisonment passed against them. The sentence of fine and the sentence of default of payment of fine passed against them will stand. We dismiss the revision of Tirlok Chand, Bholu, Mani Earn, Hari Singh, Budhoo and Bam Swarup. They are on bail and will surrender at once to serve out the rest of their sentence.