1. I passed a preliminary order in this matter on 4th December 1928. The opinions expressed therein were merely tentative and the whole matter shall be examined over again in the present order. Janeshar Das and Khushi Ram, two servants of the treasurer of the Muzaffarnagar treasury, were charged with three offences and each offence was framed in the alternative either of criminal breach of trust or abetment thereof. There was found deficiency on a certain date in stamp labels kept in the double lock of the treasury and in cash kept in the single-lock. Inquiry was made and the prosecuting agency appears to have been doubtful whether Janeshar Das committed the breach of trust and Khushi Ram abetted him, or whether Khushi Ram committed the breach of trust and Janeshar Das abetted him. Three items of defalcation were chosen, two relating to stamps and one relating to cash, and as regards each item the charge was framed in the alternative. Both Janeshar Das and Khushi Ram were 'tried jointly. In this Court the argument of Janeshar Das has been that he was born a fool and the blackguard of the piece was Khushi Ram. On his behalf no allegation was made as to the illegality of the trial. This point, however, was stressed with great force by Mr. Banerji on behalf of Khushi Ram as the learned Counsel appears to have felt that the cause of Khushi Ram was damaged by joint prosecution with Janeshar Das.
2. The provisions of Section 239, Criminal P.C., lay down how persons will be charged and tried together. Mr. Banerji argued that Khushi Ram was really charged for more than three offences, in fact six, as in each case he was charged in the alternative for breach of trust and for abetment thereof. This Court has held that the provisions of Section 239 of the Code are to be considered exclusively without the help of the provisions of Sections 234 to 238. In 1921 in the case of Ram Prasad v. Emperor A.I.R. 1921 All. 246 Kanhaiya Lal and Wallach, JJ., had before them the trial of more than one person for three offences of dacoity. They observed:
The four accused could also have been triad jointly in one trial for any one of the three dacoities in which they are alleged to have taken part, but all could not be tried together at one trial for the three dacoities, as these offences were not committed in the same transaction, Section 234 is one of a number of sections which are grouped together under the heading of 'joinder of charges.' This may, and in fact does, refer to charges both against single and several accused. But the sections under the general heading relating to these respective cases are kept separate. Section 233 lays down a general rule that for every distinct offence there is to be a separate charge and that every such charge is to be tried separately, except in the cases mentioned in Sections 231, 235, 236 and 239. Sections 234 to 238 by their terms refer to the case of a single accused. Section 239 deals with the case where more persons than one are accused. The legislature intended to and did by these sections differentiate between the cases of a single and several accused. It cannot be said that all the sections prior to Section 239 apply to both these cases although in terms they refer to one only, viz., that of a single accused. The existence of a Section 239 specifically dealing with the case of several accused, and the arrangement of the sections to which We have referred, constitutes such a repugnance in the context as prevents us from reading 'a person' in Section 234 as including several persons.
3. These observations were made prior to 1923. The provisions of Section 239 at that time were as follows:
When more persons than one are accused of the same offence or of different offences committed in the same transaction, or when one parson is accused of committing any offence and another of abetment of, or attempt to commit such offence, they may be charged and tried together or separately, as the Court thinks fit; and the provisions contained in the former part of this Chapter shall apply to all such charges.
4. The section was entirely recast by Act 18 of 1923, and at present a joint trial is permitted of persons accused of more than one offence of the same kind within the meaning of Section 234, committed by them jointly within the period of twelve months. Obviously, therefore, when more persons than one are tried jointly reference cannot be made to provisions of the Code previous to Section 239 indiscriminately. If that had been the intention it would not have been necessary to state definitely that persons accused of more than one offence of the same kind within the meaning of Section 234 committed by them jointly within the period of twelve months may be tried together. It is important to remember this because the Government Pleader referred the Court to the words at the end of the section:
and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges.
5. Those words existed when the Bench ruling in the case of Ram Prasad was pronounced and the learned Judges refused to read the provisions of Section 234 conjointly with the provisions of Section 239. In my opinion the words at the end of the section are more by way of limitation than extension. The serious question that arises is whether the appellants should be considered to have been prosecuted on six charges, or on three alternative charges, each alternative case forming one charge. Mr. Banerji, in my opinion, rightly pointed out in this connexion that if the legislature considered an offence and an abetment thereof in the alternative to be one charge there was no necessity to preserve Clause (b), Section 239 when that section was recast in 1923. That clause permits the joint trial of persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence. If an offence and the abetment thereof were considered to be the same offence the case would have been covered by Clause (a) without any specification in Clause (b). The argument on behalf of the Crown was that the provisions of Section 236 should be read along with the provisions of Section 239. Under Section 236 if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once, At present I am not called upon to give an opinion whether this provision and the provisions of Section 234 as to trial of accused persons for three offences committed within the space of twelve months are exclusive or not. The question is whether the provisions of Section 236 may be utilized to declare the charge in the alternative of embezzlement and abetment thereof to be one charge. The provisions of Section 236 themselves do not designate these separate charges as one charge, but designate them as different charges in the alternative, and that is why special permission is given under the Act for the trial of such charges. The Bombay High Court in re Bal Gangadhar Tilak  33 Bom. 221, was of opinion that Sections 234, 235, 236, and 239 were not mutually exclusive. It may be respectfully submitted that there was only one person up for trial in that case, and the consideration of the provisions of Section 239 did not arise in that case. We have also seen how a Bench of equal authority of this Court held several years later that the provisions of Section 239 were exclusive. A Single Judge of this Court in 1910 in Emperor v. Sheo Saran Lal  32 All. 219 was not prepared to follow the reasoning of the Bombay High Court in the case of Bal Gangadhar Tilak. In that case attempt was made to combine the provisions of Section 234 and of Section 235(1). It was argued there that if an accused person goes through three similar transactions within the period of 12 months, committing in each transaction the same series of offences, he can be tried at one and the same trial on account of all offences committed in the course of the three transactions even if they total more than three. The learned Judge refused to extend the exception mentioned in Section 234 by adding to it the exception mentioned in Section 235(1).
6. So far as this Court is concerned the opinion has been that the provision of Sections 234, 235 and 236 are mutually exclusive. There is all the more reason, therefore, to hold that the provisions of Section 239 stand by themselves and the scope thereof cannot be extended by use of the provisions of sections not referred to in Section 239. In my opinion there is considerable reason in this view. When a man is charged in the alternative with embezzlement or abetment thereof he has to meet two distinct set of circumstances. When in three separate cases he is charged in the alternative he has to meet six distinct set of circumstances. This would be against the spirit of the provisions of Section 233 and would not be covered by any of the exceptions detailed in the sections that follow Section 233. In my opinion Khushi Ram was really tried for six offences. The trial was illegal, and the question whether Khushi Ram was prejudiced or not does not arise. At the same time it is possible that he was prejudiced in so far that Janeshar Das has attempted to throw the entire blame On him. Prejudice must also be presumed from the confusion arising from a man being called upon to face at a single trial six sets of circumstances.
7. In the result I set aside the convictions and sentences and order a retrial of Janeshar Das and Khushi Ram. It will be for the prosecution to decide whether they should be tried jointly or separately. Possibly a separate trial would be more advisable, and the point should also be kept in view that so far as this Court is concerned the provisions of Sections 234, 235, and 236 are considered to be mutually exclusive. A request was made on behalf of Khushi Ram that the same learned Judge who convicted him may not hold the fresh trial. This is a reasonable request. The Sessions Judge of Meerut is requested to see that the trial is held by some other Sessions Judge.
8. Janeshar Das and Khushi Ram are on bail. They shall remain on the same bail until any further order is passed by the Sessions Judge who retries them.