1. These two appeals arise from the judgment of the learned Sessions Judge of Quilon in Sessions Case No. 14 of 1952 on the file of his Court. Criminal Appeal 91 is by the 1st accused in the case and Crl. Appeal 92 by the 2nd accused. They have both been convicted for commission of offences punishable under Sections 304A, 279, 336 and 337, Penal Code, and each of them has been sentenced to undergo rigorous imprisonment for six months and pay a fine of Rs. 150/- and, in default of the payment of fine, to undergo simple imprisonment for a further period of two months.
2. The two accused were driving two cars from almost opposite directions and the charge against them related not only to the collision of the cars and the consequences that followed viz., the death of one David Daniel and causing hurt to P. W. 1 in the case but also to the rash or negligent driving of their cars along the public road as to endanger human life or to be likely to cause hurt or injury to other persons. These latter acts fell under Sections 279 and 336, Penal Code. The commission of the offences under these two sections was anterior to the collision. The charges framed against the appellants make that very clear.
Whatever might be said of the collision and its consequences, proximate or remote, we cannot bring ourselves to hold that the driving of his car by Accused 1 on the one hand, in a rash or negligent manner so as to attract the penal provisions in Sections 279 and 336 and similar conduct with his car by accused 2 on the other, constituted a 'same transaction' within the meaning of Section 239(a) or Section 239(d), Criminal P. C. Those are distinct acts unconnected with each other committed by different persons at different places and there is no warrant for the delinquents being jointly tried for those acts. In other words there was mis-joinder of charges and persons in holding a joint trial of accused 1 and 2 for commission of the offences under sections 279 and 336.
Following the decisions in - 'Raghava Kurup v. Sirkar' 1949 TC LR 23 (A) and - 'Dandapani Ayyar v. Sirkar' 1949 TC LR 113 (B) we have to set aside the convictions and sentences passed in the trial held in contravention of the mandatory provisions of the Code. The joint trial of two or more persons renders the trial invalid except in the cases falling under Section 239. Section 537 does not apply to such a case.
3. The learned Public Prosecutor invited our attention to certain early Indian decisions which hold that misjoinder of charges and persons would only amount to an irregularity curable under Section 537, Criminal P. C., unless the accused persons have been prejudiced by the joint trial. We regret we cannot accede to that argument. We prefer to follow our own decisions cited above and the long line of cases referred to in those decisions.
4. We have so far advisedly refrained from referring to the joint trial of the appellants for the offences under Sections 304A and 337. We came across one case where two motor drivers whose buses collided with each other and which collision resulted in the death of four passengers in one bus and two in the other and injuries to no less than seventeen other passengers were jointly tried for causing murder and ultimately convicted of the offence under Section 304A. We have in mind the case in - 'Balliah v. Emperor' 1931 Mad WN 550 (C) where the objection as to misjoinder was raised and repelled.
For more reasons than one, it would be helpful to quote here the relevant portion of the judgment in that case. It runs as follows:
One point was taken and that was that there had been a misjoinder of parties because it was urged that the collision was a result of separate acts pi the accused and it could not be said that it arose out of the same transaction and it was argued that in order to -constitute the same transaction the parties engaged in it must have a similar or identical purpose in view. That no doubt is one very good test to apply when a question such as this is under consideration; but if two or more persons commit the same offence in the same transaction they can be tried together. The whole question is, what is the same transaction. If the test in all cases of what the same transaction is to be that persons must be engaged in a similar or identical purpose then in this case applying that test there has been a wrong joinder, but we are satisfied, that is not the only test nor is this case the right test to apply. This is an unusual case and we see no reason for considering the matter from that point of view and applying the same test as has been applied in some cases. This was a motor collision and the result of the collision was the death of six persons. It was one transaction, namely, the collision and we are quite satisfied that both accused can be tried together as indeed they were. Therefore that contention fails.
With respect it looks like saying that extraordinary circumstances require desperate methods to tackle them. The judgment conceded that it gives to the term 'same transaction' a meaning wider than ever given to it in any previous decision. We have not been able to come across any other case where a joint trial was held under similar circumstances nor is the decision seen referred to in any subsequent case. The form or nature of the accusation is not clear from the judgment. What is material to decide the question of the legality of a joint trial is whether the accusation alleges the offences committed by each accused to have been committed in the same transaction.
5. Without dissenting from the view that the collision was one transaction we venture to observe that in the case in hand considerations more fundamental than convenience of the court and the prosecution should have dictated to the learned trial judge that Separate trials of the two accused persons had to be held even in respect of the offences under Sections 304A and 337.
In 1949 TC LR 113 (B) we had on good authority occasion to point out that in doubtful cases it was far better to follow the normal rule laid down by the Code, viz. to conduct separate trials and not have recourse to the exceptions provided for that rule enabling the holding of joint trials.
6. Further, joint trial of two accused persons is not desirable when each tries to throw blame and responsibility upon the other. Both in cross-examination at the trial and in the arguments before us each accused was trying to show that it was the other accused who was at fault.
In this context we would quote the following from the judgment of Mahmood J. in - 'Queen Empress v. Abdul Kadir' 9 All 452 (D).
Further, it seems to me clear upon general principles, that each individual member of the community is, in the absence of exceptional authority conferred by the law to the contrary effect, entitled, when required by the judiciary either to forfeit his liberty or to have that liberty qualified, to insist that his case shall be separately tried. In the eye of the law, each individual citizen is a separate integer or unit of the commonwealth, and his rights of liberty cannot, without express authority in the law, be dealt with jointly with those of a crowd of other persons with whom, far from having a community of interests, he may have incompatibility of interests in matters of a nature such as this case presents.
On the whole our conclusion is that each accused person should have been separately tried for the various offences he stood charged with.
7. Accordingly we set aside the convictions and sentences passed in the case and direct the Sessions Court to hold separate trials of these accused persons. No doubt when very nearly four years have elapsed after the occurrence it is very hard on the accused to have to submit to new trials but the court is primarily concerned with law taking its normal course. If there are good grounds the accused persons can move the Government for the withdrawal of the case. We do not think we will be justified in not directing the retrial.
8. In passing we may observe that the learned Public Prosecutor was not able to give any satisfactory explanation to our query as to why the police charge-sheet in the case happened to be laid so late as 2-5-1125 when more than three months had elapsed from the date of the occurrence.
9. The bail bonds of the appellants shall remain in force until they execute fresh bonds before the Sessions Court, Quilon.
10. Order accordingly.