1. The charge against the accused Nos. 1, 2 and 3 is that they passed certain resolutions defamatory of the complainant and published those resolutions. The charge against the 4th accused is that he transmitted the resolutions to a newspaper in Bombay. The charges against accused Nos. 1, 3 and 3 and the 4th accused were tried together, and objection is taken that the trial was illegal because the offences committed by accused Nos. 1, 2 and 3 and the offence committed by the 4th accused were not committed in the same transaction within the meaning of Section 239, Criminal Procedure Code. We think the objection is well founded. The Crown Prosecutor has not been able to refer us to any evidence sufficient to show that the offences were committed in the same transaction. All that is shown is that the 4th accused was a clerk in the service of one of the parties to the resolution who had died before the complaint in this case Was put in. There is nothing to show that accused Nos. 1, 2 and 3 instigated the 4th accused to write the letter to the paper in Bombay of which he was a reporter, or that they knew anything about the matter until this newspaper appeared or that accused Nos. 1, 2 and 3 and the 4th accused had any common purpose. Section 239 not being applicable, and Sections 234, 235 and 236 not being in point, Section 233 of the Criminal Procedure Code prohibits the joint trial of accused Nos. 1, 2 and 3 along with the 4th accused.
2. The principle of the decision in Subramaniya Aiyar v. King-Emperor I.L.R. (1901) M. 61 clearly applies to the present case. On the ground, therefore, that the trial was illegal we set aside the convictions. Considering the nature of the case and the fact that the accused have already been harrassed for 21/2 years we do not think we should order a retrial. We, therefore, acquit the accused and direct that the fines, if paid, be refunded.