V.B. Raju, J.
1. This is an appeal by the State against the acquittal of the respondent Rameshbhai in Criminal Case No. 370 of 1962. The charge against the respondent was that on 12-1-61 in the course of the trial of Special Case No. 6/60 in the Court of Special Judge, Ahmedabad, against police constable Ramchandra he had stated in evidence as per the sheet annexed with the charge. The sheet annexed with the charge runs into two typed pages consisting of about 50 sentences. A charge of giving false evidence cannot comprise so many statements. A person can be charged for giving false evidence regarding a particular statement in his deposition. A charge which consists of an allegation that he made 100 false statements would amount to a charge of 100 offences. Under Section 234, Cr.P.C. an accused person can be charged at one trial for any number of offences not exceeding three of the same kind committed within the space of 12 months whether in respect of the same person or not. Under Section 235(1), Cr.P.C. a person can be charged with and tried at one trial for every offence committed by the same person in the course of the same transaction. Section 235(1), Cr.P.C. does not put a limit of three to the number of offences which can be tried at one trial. But Section 234, Cr.P.C. prescribes such a limit. The question arises whether in the course of the same transaction if more than three offences of the same kind are committed, the case would fall under Section 234 or Section 235 of the Code. The view taken by the Bombay High Court in Chandra v. The State 53 Bom. L.R. 928, is that when a case falls under more than one exceptions contained in Sections 234, 235 and 236 of the Code, all the conditions mentioned in all the sections must be satisfied. In that case at page 930 it was observed that if a case falls under more than one exception, it must not infringe the provisions of any of the three sections. Here we have offences of the same kind committed on the same day by the same person and, therefore, the case would fall under Section 234 of the Code. But all the statements were made in the same deposition and therefore they amount to one transaction and the case would therefore fall under Section 235 of the Code. According to the view taken by Chagla, C.J., the trial must not infringe the provisions of any of the three sections. In other words, even if the offences are of the same kind and even if they form the same transaction, they must not exceed three as provided in Section 234 of the Code. But with great respect, it is difficult to agree with this view. There is no reason to hold that five different offences committed in the same transaction can be tried at one trial but not five offences of the same kind. Illustration (d) to Section 235(1) reads as follows:
A has in his possession several seals, knowing them to be counterfeit and intending to use them for the purpose of committing several forgeries punishable under Section 466 of the Indian Penal Code. A may be separately charged with, and convicted of, the possession of each seal under Section 473 of the Indian Penal Code.
According to this Illustration, any number of the offerees of the same kind can be tried at one trial if they form one transaction. The Illustration does not place a limit of three on the number of offences. With great respect, I differ from the view taken in 53 Bom. L.R. 928 (supra). But we must remember that before there can be a separate trial as provided in Section 235 of the Code, the offences must be separately charged. Section 235 of the Code provides that the accused person may be charged with and tried at one trial for every such offence. Therefore, there must be a separate charge for every offence in which case there can be a single trial. At the end of Illustration (h) to Section 235(1) of the Code, it is also provided that the separate charges referred to in Illustration (a) to (h) respectively may be tried at the same time. In other words, it is only separate charges that can be tried at the same time. But one charge of a number of offences committed in the same transaction cannot be tried at one trial. In this case the learned Magistrate has framed only one charge in respect of numerous statements contained in Ex. 12/1 the sheet annexed to the charge. The irregularity cannot be cured by Section 537, Cr.P.C. because this is not a case of a mis-joinder of charges, there being separate charges. This is a case where the requirement of Section 235 of the Code permitting a single trial has not been complied with The requirements for a single trial in Section 235 are that various offences must be committed in the course of the same transaction and that they must be separately charged. The first requirement may have been satisfied but not the second. Therefore, the requirement of Section 235 of the Code permitting a single trial has not been satisfied. This is a case of a single trial not justified by Section 235 of the Code in spite of the fact that different offences may form the same transaction I, therefore, hold that the whole trial is bad and that the proceedings are not cured by Section 537 of the Code.
2. Even if a trial is permitted we must remember that although it is for the Court to punish perjury committed by Panchas, for the sake of proper administration of justice, we cannot convict them of the offence of perjury merely because their evidence is contrary to that of a police officer, because in that case no Panch will have the courage to differ from the police officer and to give evidence contrary to that of the police officer regarding (he circumstances in which a Panchnama has been made. According to the prosecution, Ramesh was present at the house of P.S.I. Hirubhai at 11 A.M. on 5-12-59 and remained with the police upto about 2-30 P.M. on that day. But according to the defence witnesses, some of whom are connected with the College, accused Ramesh being also a College student, accused Ramesh used to attend a rehearsal after College hours from 11-30 A.M. onwards on Saturdays. The defence witnesses do not speak of Saturday 5-12-59, but speak of Saturdays generally. We are concerned with Saturday 5-12-59 and not Saturdays in general. The evidence of the defence witnesses regarding Saturdays generally, therefore, does not help the defence. The rest of the evidence of the defence refers to 6-12-59, while the prosecution against the Panchas refer to 5-12-59, and therefore the defence witnesses do not contradict the prosecution witnesses. But although the defence cannot rely on the defence witnesses to prove that the evidence is true, the prosecution must prove that the statements are false, and for this they rely on the evidence of Deepak and Police Sub Inspector Hiralal. Deepak is a person on whose allegation a trap was laid. This is not a case in which we should convict the accused person merely on the evidence of a police officer and his companion in a raid. This is so particularly because there are several contradictions in the evidence of Deepak and the Police Sub Inspector. According to Deepak he gave the money to Police Constable Ramchandra in a cabin, which is not the case of Police Sub Inspector Hirabhai. P.S.I. Hirabhai has stated that he stood at 50 to 60 feet from the cabin, and they were standing in a position were from they cannot see the transaction if it takes place in the cabin. In these circumstances, it cannot be right to convict a person of perjury only on the evidence of P.S.I. Hirubhai and his companion Deepak.
3. The learned Government Pleader wanted me to refer to the facts that Opened before the trial, the Magistrate must come to his own opinion on the evidence led before him as to whether the person accused for the offence before him is guilty or not. He cannot refer to the opinion held by any other Court in another proceeding and on different evidence.
4. In the course of the trial the accused put in his written statement under Section 256(2) of the Code, which provides that if the accused put in any written statement, the Magistrate shall file it with the record. This expression 'shall file it with the record' is different from the expression used in Section 510 of the Code, where the expression used is may be used as evidence'. Section 510 of the Code provides that the report of the Chemical Analyser may be used as evidence in any inquiry, trial or other proceeding under the Code. But this is not the expression used in Section 256 of the Code A written statement cannot, therefore be used as evidence, there being no provision in the Evidence Act about its being used as evidence.
As already stated, according to me, the trial is had, and this is not a case of re-trial. I, therefore, dismiss the appeal.