V.B. Raju, J.
1. This is a criminal appeal by the State of Gujarat against the acquittal of respondents Nos. 1 and 2.
2. The prosecution filed two separate complaints against respondent No. 1 and respondent No. 2, who are father and son, under Section 66 (b) of the Prohibition Act. The complaint against respondent No. 1 was that he was found in possession of more than 500, one Ib. bottles of liquor, when his room was raided and searched on 13-1-59. The complaint against respondent No. 2 was that when his room in Jethalal chawl at Behrampura, outside Jamalpur Darwaja, Ahmedabad, was searched on 13-1-59, in the presence of panchas, he was found in possession of more than 2000, one Ib. bottles of liquor. The two cases arising out of these complaints were Nos. 256 of 1959 and 257 of 1959. The learned Magistrate recorded the pleas of the two accused separately in the two cases. On 16-6-59, he adjourned the two cases for evidence of the complainant and the witnesses On 9-7-59, however, the learned Magistrate consolidated the trial of the two accused, recorded the evidence and pronounced his judgment, acquitting both the respondents. The State has now come in appeal against the acquittal of the two respondents.
3. Without going into the merits of the case and detailed appreciation of the evidence, we must order a re-trial separately of the two accused. The prosecution had filed two separate complaints and the cases arising out of the two complaints were numbered separately as cases Nos. 256 of 1959 and 257 of 1954. Ii is always open to the prosecution to file a single complaint in respect of more than one accused person and if the circumstances are such that the provision of Section 239. Cri. Pro. Code would apply there can be a proper trial of such a complaint. For instance if the case of the prosecution is that two accused have committed offences in the course of the same transaction it is open to the prosecution to file a single complaint against two accused persons. Again if it is the case of the prosecution that two offences of the same kind have been committed jointly by two accused persons within a period of 12 months it is open to the prosecution to file a single complaint in respect of such offences committed by the two accused persons. A joint trial of two different accused persons must comply with the requirements of Section 239 Cri Pro. Code. The very fact that the prosecution filed two separate complaints against the two accused persons would show that it was not the prosecution case that these two offences were part of the same transaction or that they were committed jointly by the two accused persons. The learned Magistrate had himself started the trial of the two cases as separate trials and recorded the pleas of the two accused separately in the two separate cases. It was therefore not open to him to consolidate the trial of the two accused after recording the pleas of the accused separately in the two different cases.
4. As observed by the Privy Council in Babulal Chakubhai v. King Emperor if it is the accusation of the prosecution that the offences committed by two different accused persons are such as to come under the application of the provisions of Section 239 Cri. Pro. Code there can be a joint trial. It follows as a corollary that if no accusation is made by the prosecution that the circumstances are such that Section 239 Cri. Pro. Code is applicable to the offences committed by two different accused persons a joint trial would be illegal. In the present case the prosecution had filed two separate complaints against the two accused persons. It was not the case of the prosecution that the provisions of Section 239 Cri. Pro. Code apply to the offences committed by the two accused persons. On this ground as also on the ground that it was not open to the learned Magistrate to consolidate the two separate trials after he had taken the pleas of the two accused persons separately we must set aside the joint trial as it is not warranted by the provisions of the Cri. Pro. Code.
5. It is however contended by Mr. Shah the Learned Counsel for the respondents that on the merits in view of the fact that the learned Magistrate has not accepted the evidence of the Police Officer and one of the panchas this is not a case in which a re-trial should be ordered. We do not propose to prejudge the merits of this case because we are ordering a re-trial separately of the two cases. This is a case in which according to the prosecution more than 500 one 1b. bottles of liquor were found in the room of respondent No. 1 and more than 2000 one lb. bottles of liquor in another room of respondent No. 2 the strength of the liquor in all the sample bottles which were sent to the Chemical Analyser exceeding SO per cent. It is true that one of the panchas had been treated as hostile because he stated that he did not know anything about the find of liquor hut the prosecution case is supported by the evidence of P.S.I. and one of the panchas. We have heard the arguments of the Learned Counsel for the respondents at great length; and we do not wish to prejudge the merits of the case we would only observe that there is a prima facie case against the accused which requires a proper trial.
6. One of the grounds on which the learned Magistrate acquitted both the respondents was that the panch Suresh who supported the prosecution case was the brother of one Navnitlal who had been employed by the police as panch in several cases. The suggestion has been denied by the P.S.I. and Suresh. In order to prove this suggestion a copy of the charge sheet in Criminal Case No. 457 of 1958 in which the same P.S.I. Patel investigated the case and in which one Navnitlal Purshottam Patel is said to have acted as panch and a copy of the panchnama in another case arising from Gomtipur Police Station and investigated by P.S.I. Palas have been produced by the defence. We do not propose to decide whether proper evidence has been led to prove that Navnitlal the brother of Suresh was the person who had acted as panch in Criminal Case No. 457 of 1958 as we are ordering a re-trial of the two cases separately. As already observed after considering all the contentions we feel that it is necessary in the interests of public justice that there should be a re-trial of the cases in which it is alleged by the prosecution that more than 500 one lb. bottles of liquor in one case more than 2000 one lb. bottles of liquor in another case had been found in the possession of the two accused parsons.
We therefore set aside the acquittal of the respondents and order a re-trial separately of the two Cases No. 256 of 1959 and No. 257 of 1959.