(1) This case has been reported by learned Sessions Judge Bhatinda with the recommendation that the commitment order made by the Committing Magistrate of Arjan Singh accused under S. 25 of the Arms Act be quashed.
(2) The brief facts of the case are that Arjan Singh and Shamsher Singh were committed by Magistrate First Calls Bhatinda to the Co of Session to stand their trial under S. 310 Indian Penal Code for causing the death of Gurdial Singh deceased on 31st March 1964. A charge under S. 25 of Arms Act was also framed against Arjan Singh, According to the prosecution allegation of the day of occurrence when Gurdial Singh deceased was standing on a canal bank in the area of village Tungwali, Arjan Singh fired a shot with a gun on Gurdial Singh which hit Gurdial Singh on his right chest and arm where after he fell down. Shamsher Singh then came forward and gave a gandasa blow to Gurdial Singh. Gurdial Singh died as a result of the injuries recited by him. it is further stated that on 3rd April, 1964, seven cartridges and a gun which had been used by Arjan Singh in the commission of the offence of murder was recovered from him. Arjan Singh had no license for that gun and so he committed an offence under S, 25 of the Arms Act.
(3) When the case came up for trial the counsel for the accused urged before the learned Sessions Judge that the joint trial of the accused for the offences under section 302 Indian Penal Code and S. 25 of the Arms Act was illegal. The contention prevailed with the learned Sessions Judge who accordingly passed an order wherein it was observed that the committing Magistrate had acted illegally in charging Arjan Singh accused under S. 25 of the arms and committing him for trial along with the other accused under S. 302, Indian Penal Code in the same case. The offence under S, 25 of the Arms act it was further observed was not exclusively triable by the Court of Session and the Magistrate was wrong in Court of Session. Recommendation was therefore made that the commitment of Rajand Singh under S. 25 of the arms Act be quashed so that the learned Sessions Judge might be able to proceed with the trial of the two accused under S. 302, Indian Penal Code.
(4) I have heard the learned counsel and given the matter my consideration and am of the view that there should not be joint trial of the accused for the offence under S. 302, Indian Penal Code and S. 25 of the Arms Act. The two offences are distinct and as provided in S. 233 of the Criminal P. C., they should be trial tried separately unless the case is covered by Ss. 234, 235, 236, or 239 of the Code. It is not disputed that Ss. 234 and 236 do no apply and the only matter which needs consideration is whether the offence under S. 302, Indian Penal code and that under S. 25 of the Arms Act can be deemed to have been committed in the course an the same transaction as mentioned in section 235 and clause (d) of section 239 of the Code. In this respect I am of the view that thought because of the prosecution allegation that the gun recovered from Arjan Singh would be relevant fact at the trial for murder necessitating a finding on that point in the case under section 302 Indian Penal Code it cannot all the same be said that the murder of Gurbux Singh deceased and the recovery of the gun were part of same transaction. As would appear from the resume of facts the murder was committed on 31st March, 1964, while the gun was alleged to have been recovered from Arjan Singh on 3rd April, 1964. The offence of murder and the recovery of the gun were dissociated in time and it cannot be said that there was any continuity of purpose and design or continuity of action the commission of the two offenses. in the Circumstances the offence of murder under section 302 Indian Penal Code which was complete on 31st March, 1964, and tat of recovery of unlicensed gun on 3rd April, 1964, under section 25 of the Arms Act cannot be deemed to be part of the same transaction. It is well established that the rest as to whether the several offences are part of the same transaction is to see whether they are so related to one another in point of purpose or as cause and effect or as principal and subsidiary acts as to constitute one continuing transaction. My attention has also been invited to Nur Khan v, Emperor A.I.R. 1925 Lah 326 (1) where it was held that ht joint trial of two accused for offences under section 307, Indian Penal Code section 20 of the Arms Act and section 115 Indian Penal Code was illegal as the offence under the Arms Act was not committed in the same transaction in which the alleged attempt to commit the murder took place. Indeed nothing has been urged before me at the hearing of the revision against the recommendation of the learned Sessions Judge that there should be no joint trial of the accused for the offences under Section 302 Indian Penal Code and section 25 of the Arms Act.
(5) The learned Sessions Judge seems to have been of the view that the offences under section 25 of the Arms Act should be tried by the Magistrate. In this respect I am of the view that as the gun which is alleged to have been recovered from Arjan Singh was according to the prosecution case under in the commission of the offence of murder to obviate inconsistent of findings the case under sec 25 of the Arms Act should also be tried by the Sessions Judge after necessary commitment for the purpose has been made. I would accordingly quash the commitment of Arjan Singh under Section 25 of the Arms Act in the case already commitment tot he Court of Sessions and direct that the two accused in that case be tried only for the offence under section 302 Indian Penal Code. I further direct that the Committing Magistrate should make a separate order of commitment of Arjan Singh accused to the Court of Sessions to stand his trial under section 25 of the Arms Act. This may be done after recording such evident as may be deemed necessary at an early date so that the two Sessions cases may be heard one after the other and thus the possibility of nay conflicting finding with regard to the recovery of gun may be avoided.
(6) Order accordingly.