B.P. Beri, J.
1. This is a revisional application directed against the order of the learned Sessions Judge, Bhilwara, dated 5th April, 1971 upholding the order of the Mun-sif Magistrate, Bhilwara dated 6th April, 1970.
2. The State launched a prosecution against Chand Mohd. and his son Sultan Mohd. under Section 420, I.P.C. and Section 79 of the Trade and Merchandise Marks Act, 1958 on the allegation that in village Pur, Sultan Mohd. manufactured counterfeit Bidies and labels of Bull Dog No. 7 which is a registered trade mark of M/s. Pyar-chand Kesharimal of Kamptee (Maharashtra) and Chand Mohd. cheated Shankardas by selling spurious Bidies on 15th February, 1966. After the perusal of papers and hearing the arguments the learned Magistrate framed a charge under Section 420, I.P.C. and Section 79 of the Trade and Merchandise Marks Act against Sultan Mohd. and under Section 420, I.P.C. against Chand Mohd. On 7th March, 1967 and on later dates he examined in all seven prosecution witnesses. An application was moved before him on 12th March, 1970 alleging that the police report did not disclose full facts and that accused Chand Mohd. and Sultan Mohd. could not be tried together for the charges levelled against them and it was prayed that the case be dismissed. The learned Magistrate came to the conclusion that the case suffered from the double error of misjoirider of offences as well as misjoinder of persons and dismissed the case adding that it was open to the prosecution, if it was so advised, to present separate charges against both the accused persons. The State preferred a revision before the learned Sessions Judge, Bhilwara who observed:
The learned lower court was probably right in disfavouring one and joint trial for both of them on the ground that it constituted a misjoinder of offences as well as misjoinder of persons.
The learned Judge then observed:
Moreover, the effect of the Magistrate's order is also not very clear as to whether it amounts to a direction for submission of fresh charge-sheet against the accused individually or it amounts to acquittal of both the accused. It may be observed here that in case the effect of the Magistrate's order is the acquittal of the accused, then this revision does not lie and if the order tantamounts to a direction for submission of fresh charge-sheet, it should be complied with. In any case, this revision appears to have no force and is hereby dismissed.
Disssatisfied Pyarchand Keshrimal Porwal, Bidi manufacturers have come up in revision.
3. learned Counsel for the applicant urged that there was no case of misjoinder of charges or of persons as the entire allegations related to one and the same transaction and Chand Mohd. and Sultan Mohd. could be tried together. Therefore, he urged, the learned Magistrate was in error in dismissing the case and the learned Sessions Judge repeated the mistake. Mr. Gaur, learned Counsel for the accused raised two objections: first, that the order of the learned Magistrate amounted to acquittal and only an appeal lay and not the present revision and his second submission was that it was a case of misjoinder of persons and not of offences. learned Counsel for the State supports the applicant.
4. I would first like to dispose of the argument of Mr. Gaur, that the order under challenge is one of acquittal and only an appeal lay and not a revision. The word employed by the Magistrate is one of 'dismissal'. The learned Sessions Judge has clearly confessed his inability to apprehend the nature of the order. Disposal of a case even after framing of a charge does not necessarily imply an acquittal. It would be useful to refer in this connection to AH Bux v. Emperor AIR 1934 All 877 : 35 Cri LJ 1177. In that case the evidence for the prosecution was recorded on a complaint and a charge was framed. The Magistrate discovered that the complainant was not examined under Section 200 and to remedy the defect the Magistrate dismissed the complaint and directed the complainant to file a fresh one. The learned Judge held that the order of dismissal did not amount to an acquittal and the trial on the second complaint was valid. In a different context their Lordships of the Privy Council in Yusofali Mulla Noorbhoy v. The King AIR 1949 PC 264 : 50 Cri LJ 889 held ihat if the prosecution was found to be illegal for lack of sanction it was not an order of acquittal and the subsequent prosecution for the same offence upon fresh legal sanction was valid and not barred. The whole basis of Section 403 (1) of the Cr. P. C, observed their Lordships, is that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal. A plea of autre fois acquit or autre fois convict can only be raised where the first trial was before a Court competent to pass a valid order of acquittal or conviction. In Mohammad Safi v. State of West Bengal : 1966CriLJ75 their Lordships of the Supreme Court1 observed :
A fortiori it would also follow that the ultimate order made by a Court which is of opinion that it has no jurisdiction to try the case by whatever name it is characterised cannot in law operate as an acquittal.
In the case before me the learned Magistrate himself observed that the prosecution was free to file a fresh complaint. He had, therefore, no intention of acquitting the accused. I am therefore unable to call this order as an order of acquittal and the objection raised by Mr. Gaur has no substance.
5. The general rule laid down in Section 233 of the Code of Criminal Procedure is that for every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in Sections 234, 235, 236 and 239. The reason for the rule obviously is to give the accused clear notice of the charges which he is called upon to meet and to see that he is not embarrassed on account of the multiplicity of the charges which are unconnected. This general rule has certain exceptions. Section 235 authorises the trial of more than one offence. The matter of joinder of charges is however in the general discretion of the court and the principle which would ordinarily regulate such discretion should be to save an accused person from the prejudice which an embarrassment of this kind is likely to cause to the defence. Section 235 (1) and (2) read:
(1) If, in one series of acts 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 at one trial for, every such offence.
(2) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.
Section 235 (1) therefore, subject to the condition mentioned in this provision distinctly permits the trial of two offences provided they are inter-connected so as to constitute the same transaction.
6. The case for the prosecution, as I have already noticed briefly is that Chand Mohd. and his son Sultan Mohd. carried the business of manufacturing and selling Bidies. The son was engaged in preparing the Bidies and counterfeiting the labels and the father sold the spurious commodity. The difference of time between these two actions is two days. The question which emerges for consideration is whether the series of acts are so connected together as to form the same transaction. It will be profitable here to notice the connotation of the word 'transaction' because that also would determine the applicability of Section 239 (2) of the Cr.PC which I shall deal with later.
7. The word 'transaction' has not been defined in the Tndian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act. The word is one of elastic import and it has been probably advisedly left undefined. Their Lordships of the Supreme Court came to consider the ingredients which regulate the determination of the question whether a series of acts did or did not constitute same transaction. A reference may be made to State of Andhra Pradesh v. Gancshwara Rao : 3SCR297 . Their Lordships have answered the question :
What is meant by 'same transaction' is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that these acts form part of the same transaction. The connection between a scries of acts seems to us to be an essential ingredient for those acts to constitute the same transaction and, therefore, the mere absence of the words 'so connected together as to form' in Clauses (a), (c) (sic) and (d) of Section 239 would make little difference.
Selling a commodity with counterfeit marks and preparing a commodity with the same counterfeit marks even though the two offences might have been discovered at an interval of two days, in my opinion, nevertheless constitute the same transaction as envisaged by Section 235 (1) of the Code of Criminal Procedure. In almost similar circumstances the Calcutta High Court in Dasarath Singh v. State : AIR1956Cal260 held:
The offences under Sections 420 and 486, I.P.C. are indeed distinct offences, but if they are shown to have been committed in the course of the same transaction there can be no bar to the trial of these two charges at one trial....
The facts of the Calcutta case were that on 6th July, 1954 the appellant's shop at Raja Katra styled Sinha Bros, was searched in the presence of witnesses. Two cartons of Sunlight Soap marked Exhibits II and Til containing the cakes in waxed paper bearing label 'Sunlight Soap Lever Bros. (India) Ltd.' were recovered. They were found on chemical examination to be of inferior stuff. The ground urged before the learned Judge was that the offence under Section 420, I.P.C. related to an occurrence of 2nd July, 1954 whereas the subject-matter of the charge under Section 486, I.P.C. took place on 6th July, 1954 and it was claimed that those were two distinct offences and the charges relating to them could not possibly be rolled up in one trial. The learned Judge rejecting the contention held that the offences under Sections 420 and 486, I.P.C. were indeed distinct offences, but if they were shown to have been committed in the course of the same transaction there could be no bar to the trial of those charges at one trial and that Section 235, Cr.PC sanctioned it. The reason for holding these two offences to be in the course of the same transaction was the proximity of time as between the two incidents being within the legitimate limits of a single transaction and only four days had intervened between passing of the spurious cakes of soap upon the unwary members of the public and the subsequent recovery of the spurious stuff. They were parts of the same transaction.
8. Practically same is the case before me. Shankardas was cheated on 15tb February, 1966 and the false labels, marks etc. were recovered on 17th February, 1966. I might also mention that Section 436, I.P.C. as it stood prior to the amendment of 1958 and Section 78 of the Trade and Merchandise Marks Act providing punishment for infringement of trade marks arc basically the same offences and the Calcutta case therefore is very apposite and I respectfully agree with it and hold that the trial of the offences under Section 420, I.P.C. and Section 79 of the Trade and Mer-j chandise Marks Act can be legally tried to-'aether and such a procedure is clearly sanctioned by Section 235, Cr.PC
9. The next question which calls for an answer is whether Chand Mohd. and. Sultan Mohd. could be tried together. The relevant portion of Section 239 (d) of the Cr.PC reads:
The following persons may be charged and tried together, namely:
X X X(d) persons accused of different offences committed in the course of the same transaction;
Their Lordships of the Supreme Court in Kadiri Kunhahammad v. State of Madras : 1960CriLJ1013 have laid down that in deciding the question whether or not more persons than one can be tried together under Section 239 (d) Cr.PC the Criminal Court has to consider the nature of the accusation made by the proseciition. If the accusation made by the prosecution would justify a joint trial of more persons than one, the validity of such a trial cannot be effectively challenged if the said accusation is not established according to law. The point of time in the proceedings at which it is to be determined, whether the condition that the offences alleged had been committed in the course of the same transaction has been fulfilled or not is the time when the accusation is made and not when the trial is concluded and the ]result known. Court while framing the icharge, in my opinion, should carefully exa-jmine the nature of the accusation and if it is satisfied that prima facie the accusa-jtion made shows that several persons are I charged of different offences and that these j offences appear to have been committed in the course of the same transaction their joint trial is clearly permissible. Before me, a father and a son have been accused of j manufacturing Biries with counterfeit marks and labels, and while one manufactured the commodity the other sold it. I have already observed, both these acts were so closely connected that they constituted the same transaction by reference to Section 235, Cr.PC There is nothing which justices giving the term 'transaction' a different meaning while construing Section 239 (d) of the Cr.PC Their joint trial is in order.
10. The result is that the order passed by the learned Sessions Judge and the learned Magistrate are both quashed and the learned Magistrate is directed to proceed with the case in accordance with law.