Arnold White, C.J.
1. In this case twelve shepherds (accused Nos. 1 to 12) were charged with, and tried together for offences under Section 21(a) of the Madras Forest Act, 1882, (permitting cattle to trespass in a reserved forest) and Section 147 of the Penal Code (rioting), and four other persons (accused Nos. 13 to 16) were charged with and tried together with the twelve shepherds for offences under Section 147 of the Penal Code. The shepherds were convicted under Section 21 of the Forest Act and Section 147 of the Penal Code. The other persons were convicted under Section 147 of the Code. On appeal the convictions in the case of two of the accused were set aside. The other convictions were upheld.
2. For the purposes of the questions I have to decide, I take the facts to, be these. The shepherds were found grazing about 3000 sheep and 800 goats in a reserved forest. The cattle were collected by Forest Officers arid driven to a place about 3 miles off. They arrived there on the evening of the same day and halted for the night. The cattle were then rescued with some violence by the shepherds and by the other persons.
3. It has been objected that the convictions are bad upon the grounds amongst others, that the petitioners were not accused of different offences committed in the same transaction within the meaning of Section 239 of the Code of Criminal Procedure, that they ought not to have been tried together, and that this was not a case where more offences than one were committed by the same person in 'one series of acts so connected together as to form the same transaction' within the meaning of Section 235, and that the petitioners ought not to have been charged with and tried at one trial for these offences.
2. With regard to both these objections, I have to consider whether, on the facts, the permitting of the cattle to trespass and the rescue of the cattle formed the same transaction. If they did not, the convictions are bad on the ground of misjoinder of parties and also on the ground of misjoinder of charges. I must hold that the acts were not so connected together as to form the same transaction (section 235) and that the 'different offences' were not committed in the same transaction (section 239). As the Public Prosecutor put it, this question is always a question of fact. Here we havecertaiu parties charged and tried for permitting cattle to trespass and the same parties, with others, charged and tried for rioting in rescuing the cattle after they had been impounded at another time and in another place. How can it be said without straining the language of the sections that the 'transaction' is the same'? If the rioting had occurred when the petitioners were taking steps to permit the cattle to trespass, it would have been otherwise. It was in no sense the necessary outcome of the permitting of the cattle to trespass that, in the event of their being impounded, they would be subsequently rescued. I cannot assume that the petitioners when they permitted the cattle to trespass intended that if the cattle were impounded they would rescue them. Take the illustrations to Section 235, Criminal Procedure Code; (a) and (6) would seem to come nearest to the facts of the present case. In (a) the grievous hurt to C was caused in the act of rescuing B a person in the lawful custody of C. In (6) the house breaking was committed with intent to commit adultery and the adultery was committed in the house entered. The illustrations are, of course, only illustrations, but they at any rate illustrate that the words 'same transaction' should be read in their ordinary sense.
3. For the purpose of the question before me I am unable to distinguish the present case on the facts from the case of Chekutty v. Emperor 26 M. 454. I may also refer to the case of Gobind Koeri v. Emperor 29 C. 285.
4. In Emperor v. Datto Hanumant Shahapurkar 30 Ba. 49 : 7 Bom. L.R. 683 : Cri. L.J. 578, to which the Public Prosecutor called my attention, the, learned Judge attempted to define the words 'same transaction' for the purposes of Section 239. If I apply the test suggested by these learned Judges, it seems to me, I must hold on the facts of the present case that the offences were not committed in a series of acts so connected as to form the same transaction.
5. I think the convictions are bad for the reasons I have stated and must he set aside. The fines and compensation if paid must be refunded. The case will be restored to the file of the Sub-Magistrate to be dealt with according to law.