1. The first point argued in this appeal is that there is a misjoinder of charges and the whole trial is vitiated by illegality.
2. It appears to me that this argument is well-founded and must be given effect to, although the point was not taken specifically in the memorandum of appeal.
3. Briefly, the alleged facts are these. Two girls were kidnapped on different dates and they were passed off as Chattri girls on receipt of money from one Bishun Rai, who wanted a wife for himself and a wife for his brother. It is argued that the offences of kidnapping being separate offences the trial ordinarily ought to have been separate, under Section 233 of the Cr.P.C. There can be no doubt that this is correct, provided the case does not come within Sections 234, 235, 236 or 239. Section 234 of the Cr.P.C. says that where more offences than one but of the same kind are committed within the space of 12 months the offender can be tried for all the offences provided they do not exceed three in number, in the same trial. Section 235 lays down that where in one series of facts so connected together as to form the same transaction more offences than one are committed by the same person he may be charged with and tried for every such, offence. Section 234 would allow the trial of two cases of kidnapping together. Similarly 235 would allow the trial of the offence of kidnapping with respect to one girl and cheating with respect to the same girl in one trial. Sections 236 and 239 have no application to the facts of this case. The question now is whether Sections 234 and 235 allow a combination of charges so that there may be one joint trial in respect of one kidnapping and cheating as a part of the same transaction with another and independent offence of kidnapping together with cheating with respect to the girl kidnapped as a part of the same transaction. Even if there were mo authority for the proposition, I would have had no hesitation incoming to the conclusion that the operations of the two Sections 234 and 235 cannot be combined. The reasons are obvious. If this were permitted the whole object of the rule laid down in Section 233 would have been frustrated. The main principle is that there should be a separate. trial for every distinct offence. Two exceptions are allowed (so far as the facts of this case are concerned), viz., those enacted in Sections 234 and 235. The present case in its entirety does not come under Section 234, nor does it come in its entirety within Section 235. If we permit a joint trial in respect of two sets of separate and independent transactions in which different offences have been committed, we would create such an amount of confusion as would, in most cases, end in a distraction of the minds of the Judges and Jury and the accused persons themselves.
4. This case is much stronger than the cases of Shuja-ud-din Ahmad v. Emperor 66 Ind. Cas. 322 : 20 A.L.J. 320 : 23 Cr.L.J. 258 : (1922) A.I.R. (A.) 214 : 44 A. 540 and Sheo Saran Lal v. Emperor 5 Ind. Cas. 896 : 32 A. 219 : 7 A.L.J. 225 : 11 Cr.L.J. 285 quoted by the learned Counsel for the appellants as authority.
5. The result is that I accept the appeal, set aside the convictions and the sentences and order a re-trial of the case or cases by the learned Sessions Judge after proper joinder of charges.
6. A question of jurisdiction was also argued before me, It was pointed out that the two offences of kidnapping really took place within the jurisdiction of some Court in the Province of Bihar and Orissa. This is a matter which should also be looked into by the learned Sessions Judge at the fresh trial.