Sadasiva Aiyar, J.
1. These are five connected revision petitions. In Criminal Revision Case No. 351 of 1918, the Public Prosecutor moves this Court for enhancement of the sentences passed upon the five accused, the accused Nos. 3, 4 and 5 being Police Constables while the 1st and 2nd accused are a Sub-Inspector of Police and a Head Constable. The Assistant Sessions Judge of Tinnevelly convicted them under sections 348 and 330 of the Indian Penal Code, and sentenced them to imprisonment till the rising of the Court and to pay fines of Rs. 1,000, 200, 25, 25, 25 respectively. The Sessions Judge on appeal, while confirming the convictions and sentences, remarked at the end that 'the sentences for such grave offences are in my opinion wholly inadequate.' The revision petition Sled by the Public Prosecutor for enhancement of the sentences had been made to this Court on the 8th July 1918 before the Sessions Judge pronounced his appeal judgment in August 1918. The Sessions Judge says in a note at the end of his judgment that he did not, therefore, make any separate reference on the question of sentences. The other four revision petitions Nos. 574, 601, 695 and 761 are by four of the five accused (that is, excepting the 3rd accused) for setting aside the convictions and sentences both on the merits and on the ground of grave irregularities and illegalities in the trial. As I have come to the conclusion that the joint trial of all the five accused was illegal and ought to be set aside, the question of enhancement of sentences applied for by the Public Prosecutor in No. 351 of 1918 does not arise.
2. The facts are very complicated, but it is necessary to detail many of them to render intelligible the grounds for my opinion as to the illegality of the trial.
3. On the 27th April 1917, there was a daocity at Kiehiiapuram, a hamlet within the jurisdiction of the Koil patti Police Station. The Probationary Sub-Inspector of Police at Koilpatti Station began the investigation on the 28th April, but on the 30th April he was superseded by the 1st accused who was the Sub-Inspector of Vilatikulam and was placed on special duty to investigate the case. The 2nd accused was the Head Constable at Koilpatti Station and the accused Nos. 3 to 5 are the Police Constables who acted under the orders of the 1st accused in the investigation.
4. The prosecution case may be shortly stated thus: prosecution 4th witness, Gurusawami Kone, was arrested on the 2nd May at a village called Iyvapulipatti. He was then marched through three different places one of which is Sankaranainarkoil; be was not produced before a Magistrate within 24 hours of the arrest on the 2nd May; he was illegally confined after the expiry of the 24 hours in these three places; he was beaten and tortured by the first four accused at Sankaranainarkoil; he was then taken to Koilpatti and illegally confined there and was tortured also on the 5th May 1917 and was continued to be kept in illegal confinement and wrongfully restrained till the 7th May, when he was produced before a Magistrate.
5. Another part of the prosecution case is that the prosecution witnesses Nos. 11, 12, 13,14 and 22, who were arrested at a village called Pandavamangalara by the accused Nos. 2,3 and 5 on the 4th May 1917,were not produced before a Magistrate within 24 hours but were kept in illegal confinement at Koilpatti and at other place till I he 7th May, when they were produced before the Magistrate. Prosecution witnesses Nos. 4, 11 and 12 were also tortured by the accused Nos. 1, 3, 4 and 5 acting together at Koilpatti on the 5th May.
6. It will thus be seen that the case against these five Police Officers tried by the Assistant Sessions Judge in one trial relates to several events which took place between the 2nd and 6th May 1917. It also appears that several acts injuring the body and affecting the liberty of prosecution 4th witness were committed between the 2nd and 5th May, which had nothing to do with the offences committed against the persons of prosecution witnesses Nos. 11, 12, 13, 14 and 22 in confining them for more than 24 hours after their arrest on the 4th or with the torturing of prosecution witnesses Nos. 4, 11 and 12 on the 5th May 1917.
7. The places where illegal confinement or wrongful restraint took place were also various, prosecution witness No. 4 having been wrongfully restrained and wrongfully confined before the 5th May in several places with which prosecution witnesses Nos. 11, 12, 13, 14 and 22 had connection. Further the 5th accused had nothing to do with the torture and confinement of prosecution witness No. 4 so far as such torture and confinement took place before the 5th May. The 2nd accused, though he arrested prosecution witnesses Nos. 11 to 14 and 22, had nothing to do with their illegal confinement after the expiry of the 24 hours from the time of their arrest which took place on the evening of the 4th May, or with the torture of the 4th, 11th and 12th prosecution witnesses at Koilpatti on the 5th May.
8. The Assistant Sessions Judge framed only one charge containing a single count against all the five accused as follows:
I, Muhammad Fuzluddin Sahib Bahadur, B.A., B.L., Assistant Sessions Judge of Tinnevelly, hereby charge you, 1. Kumaramuthu Pillai, 2. Kandasami Pillai, 3 Subbayya Pillai, 4. Muthurainalingam Pillai, and 5, Shanmuga Kone, as follows:
That you, on or about the 2nd to 6th days of May 1917, wrongfully confined Gurusami Kone, Karuppanna Thevan, Kathappa Thevan, Chinnakaruppa Thevan, Pulu Naik and Veerappa Naik for the purpose of extorting from Gurusami Kone, Karuppanna Thevan and Kathappa Thevan any confession or information which may lead to the detection of an offence of dacoity that occurred in Kechilapuram and that you also voluntarily caused hurt to Gurusami Kone, Karuppanna Thevan and Kathappa Thevan for the purpose of extorting from them a confession which may lead to the detection of the said offence of dacoity and thereby committed offences punishable under sections 348 and 330 of the Indian Penal Code and within my cognizance. And I hereby direct that you be tried on the said charge.
9. I must say that the framing of a charge like this on the facts alleged by the prosecution as above set out is wholly opposed both to the spirit and the letter of the provisions of the Criminal Procedure Code relating to the framing of charges. The charge sounds as if all the six prosecution witnesses Nos. 4, 11, 12,13, 14 and 22 had been confined and tortured together, in the same place or places during the same period by all the five accused acting together whereas the prosecution case itself discloses several events of which two at least are quite distinct both in time and place and also events differently constituted in the personalities of those offending and those offended against. I refer to the event at Sankaranainarkoil on the night of the 2nd May when accused Nos. 1 to 4 alone tortured prosecution 4th witness, and to the other distinct event of the 5th May at Koilpatti where prosecution witnesses Nos. 4, 11 and 12 were tortured by accused Nos. 1, 3, 4 and 5 alone excluding the 2nd accused. Section 221 of the Criminal Procedure Code says: 'Every charge shall state the offence with which the accused is charged.' Section 222 says: 'The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.' Section 233 says: 'Fop every distinct offense of which any parson is accused there shall be a separate charge.' According to these provisions, it is clear that against every one of these 5 accused there should have been a separate charge in respect of each of the two offences under sections 348 and 330 and thus there ought to have been 10 charges framed. Again each of the two charges against the 1st accused (the Sub-Inspector) should have contained several counts relating to the events with which he was concerned (according to the prosecution case) in Sankaranainarkoil in Koilpatti and in other places where prosecution 4th witness was confined and tortured and also counts as to what was done by him in torturing prosecution witnesses Nos. 4, 11 and 12 and in wrongfully confining prosecution witnesses Nos. 11, 12, 13, 14 and 22. I need not take the, trouble at this stage to detail the manner in which the counts should have been entered in the two charges which had to be framed for the two distinct offences under sections 348 and 330, which ought to have been framed against each of the accused Nos. 2, 3, 4 and 5 similarly. It has, however, to be remarked that this most serious error of the Assistant Sessions Judge in not framing the proper and necessary charges seems not to have been made a grievance of by the accused in either of the two lower Courts, nor could I find any point taken in the grounds found in the four revision petitions put in by the accused Nos. 1, 2, 4 and 5. (The 3rd, accused has not filed a separate revision petition but we have considered his case also suo motu in revision as inextricably connected with the case of the other four.)
10. Mr. Rangachariar, however, very strenuousiy argued that the omission to frame proper charges as required by law made the whole trial illegal and referred to several cases on the point, mostly decider by the Calcutta High Court. I shall refer only to one of those Calcutta cases, namely in Asgar Ali v. Emperor 20 Ind. Cas. 609 : 17 C.W.N. 827 : 14 Cri. L.J. 449 : 40 C.P 846. There, two distinct offences were joined in one charge. Sir Richard Harrington and Coxe (JJ.) set aside the conviction and sentence on the sole ground that the joining of two distinct offences under one charge is an illegality opposed to Section 233, Criminal Procedure Code, and that, that illegality was fatal to the whole proceedings. Coxe, J., says: 'I agree that the rule should be made absolute, though with great reluctance, as it is perfectly dear that the defect in the charge has never made the least difference to the petitioner. We are bound, however, by the decision in Subrahmania Ayyar v. King Emperor 25 M.P 61 : 11 M.L.J. 233 : 3 Bom. L.R. 540 : 5 C.W.N. 866 : 28 I.A. 257 (P.C.) : 2 Weir 27 : 8 Sar. P.C.J. 160 and the charge framed being illegal, the conviction cannot be sustained.' With the greatest respect, I am inclined to hold that the decision in Subruhmania Ayyar v. King Emperor 25 M.P 61 : 11 M.L.J. 233 : 3 Bom. L.R. 540 : 5 C.W.N. 866 : 28 I.A. 257 : 2 Weir 27 : 8 Sar. P.C.J. 160, notwithstanding some of the general observations made by their Lordships of the Privy Council in their judgment, was confined to the illegality due to one trial of more than three offences contrary to the provisions of Section 234 and did not go to the length of deciding that the omission to frame two distinct charges for two distinct offences was fatal to the trial. I think that Section 537(a), which mentions, among other things, of 'error, omission or irregularity in the charge', is wide enough to cover omission to frame the charge or charges properly and also omission to frame distinct and separate charges. Section 225 also says: 'No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.' Illustration (e) to Section 225 is instructive on this point. 'A is charged with the murder of Haidar Baksh on the 20th January 1882, and Khoda Baksh (who tried to arrest him for that murder) on the 21st January 1882. When charged let the murder of Haidar Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haidar Baksh. The Court may infer from this that A was misled and that the error was material.' This illustration shows that even an entire omission to frame a charge for the murder of Khoda Baksh would not have vitiated the trial unless the accused was misled and the error was material. It seems to me that the framing of one joint charge for two offences instead of two separate charges, one for each offence, is a much less serious thing and I do not think that this is more than an irregularity and it cannot be held to vitiate the trial.
11. Before dealing with the material illegality on which in my opinion the trial must be held to be bad, I shall deal shortly with two other less important points argued by, Mr. Rangachariar. One of these points was that the Committing Magistrate took cognizance of the case illegally and hence had no jurisdiction to make the commitment. To understand this argument, I have to state some other facts shortly. Prosecution 3rd witness Mr. F. Sayers, who was the District Superintendent of Police, suspected in August 1917 that the 1st accused, the Sub-Inspector, made false entries in his diaries, to the effect that he arrested prosecution witnesses Nos. 4, 11, 12, 13, 14 and 22 on the 6th May. He also suspected that the confessional statement of prosecution 4th witness obtained by the 1st accused was due to torture. He accordingly took steps to have the case of dacoity against the prosecution witness No. 4 and others launched in the Sessions Court withdrawn. On the 13th August 1917, he reported to the Police Station at Koilpatti that these five Police Officers and another Police Constable prepared false records, wrongfully confined certain persons and caused them hurt in order to extort confession or statement leading to detection of an offence. (See Exhibit E.) This information is stated to have been given under Section 154 of the Criminal Procedure Code. The District Superintendent of Police having thus given the information on the 13th August 1917 to the Koilpatti Station under Section 154, the officer in charge of the Police Station had the power to investigate that case under Section 156 of the Criminal Procedure Code. But what happened was that that officer never made any such investigation, but the District Superintendent of Police, that is, the complainant himself, began to make the investigation. I do not say that he had no power to do it because under Section 551 of the Criminal Procedure Code, every officer superior in rank to an officer in charge of a Police Station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. But still it is rather startling that the complainant himself should have made the investigation. The District Superintendent of Police, after he had made a lot of investigation partly by himself between 2nd August 1917 and 1st September, 1917 (see Exhibit F series), and partly through his personal assistant on 4th September 1917 (see M. series), seems to have signed Exhibit B on 12th September 1917 as the complainant or informant whose first information--report of 13th August 1917 orally given--was for the first time reduced to writing on 12th September 1917 under Section 154 or the Criminal Procedure Code. Then on that same date a charge sheet, Exhibit II, was sent under Section 173 to the Magistrate empowered to take cognisance of the case. I do not know whether the personal assistant to the District Superintendent of Police, prosecution 1st witness, had any jurisdiction over Koilpatti. If he had none, his investigation on the 4th September could not have bean under Section 156. As regards his (D. Section P's.) own investigation, he and his personal assistant seem to have been at one time inclined to treat it as a departmental enquiry (see column 4 of Exhibit E) and at other times as an investigation held under Section 156. I have no reasonable doubt from the records that Mr. Sayers, when he examined witnesses to incriminate these Police Officers after the 13th August 1917 (when he gave his oral information to the Koilpatti Police Station), should be deemed to have been acting as the Investigating Police Officer under Section 56 read with Section 551. If so, the Magistrate had the legal power under Section 190(6) to treat the charge sheet as a Police report and to take cognisance of the dffences and to commit to the Sessions. This contention of Mr. Rangachariar, therefore, fails.
12. Another contention of Mr. Rangchariar was that the lower Courts were wrong in having acted upon the statements (F series and M series) obtained from prosecution witnesses Nos. 4, 5, 7,9 and 11 to 20 and 22, (F series and M series) by the District Superintendent of Police and his assistant during their investigation between the 22nd August 1917 and the 4th September 1917 as corroborative of the evidence of those witnesses at the Sessions trial. Two provisions of law, namely, Section 162 of the Criminal Procedure Code and Section 157 of the Indian Evidence Act, have to be considered in this connection. Section 162 of the Criminal Procedure Code prohibits the using as evidence of any writing taken down by a Police Officer in the course of his investigation. As these depositions were taken by prosecution 1st witness and prosecution 3rd witness as Investigating Police Officers, and not as persons holding a departmental enquiry, and as under Section 156(2), even though prosecution 1st witness may not have been empowered to investigate, his proceedings could be called in question on that ground, and as the statement made to him also does fall under Section 162, I think that the lower Courts were not justified in using these documents as corroborative evidence. On this ground alone, a re-trial seems to be necessary.
13. As regards Section 157 of the Evidence Act, the question whether a person holding a departmental enquiry (assuming that these depositions Exhibits F and M series were taken in a departmental enquiry) is a person legally competent to investigate the fact of the commission of the alleged offences by his subordinates, has not formed the subject of any decision placed before us. I am inclined to agree with Sundara Aiyar, J. in his opinion in the Full Bench case in Muthukumarasawmi Pillai v. Emperor 14 Ind. Cas. 896 : 35 M.P 397 : 13 Cri. L.J. 352 : (1912) M.W.N. 549 : 12 M.L.T. 1 that 'legally competent' means having power under some law, statutory or otherwise. If the District Superintendent of Police has power under some law or other to hold a depart mental enquiry he must be held competent to investigate. I do not agree with the Public Prosecutor that a private person like the head of a Bank holding enquiries into offences committed by his subordinates unofficially can be said to be a person legally competent to investigate the fact of the offences, though it may be the usual thing to make such departmental enquiries before sending on the suspected persons to the Police. However, Section 157 of the Evidence Act is clearly controlled by Section 162 of the Criminal Procedure Code and even if the statements are admissible under Section 157, they can only be proved by oral evidence to the effect that such and such statements were made, but the writings themselves cannot be used according to the Fall Bench decision in Muthkumarasawmi Pillai v. Emperor 14 Ind. Cas. 896 : 35 M.P 397 : 13 Cri. L.J. 352 : (1912) M.W.N. 549 : 12 M.L.T. 1. In the present case, these writings themselves have been used and this should not have been allowed. I think that even if these statements were not taken in the course of an investigation under Section 162 but only in a departmental enquiry in which prosecution witnesses Nos. 1 and 3 were legally competent to investigate facts and even if oral evidence (without the writing) as to the particulars of the statements can be given under the Fall Bench ruling, all such evidence should be excluded in the re-trial of these cases which I have resolved to order, as the use of even oral evidence is opposed to the spirit of the law and the witnesses who gave evidence before the high Police Officers could not be expected to have known or to have made any distinction in their minds between a departmental enquiry and a Police investigation.
14. Having thus dealt with what I have called minor points though those points also raise very difficult and interesting questions of law, I shall now proceed to the final and important point, namely, whether the whole trial has not been vitiated by jointly trying in one trial the five accused in respect of at least two distinct transactions which took place on two different dates, the 5th accused not being involved in the earlier transaction of the 2nd May, and the 2nd accused in the later transaction of the 5th May.
15. In this connection, sections 233, 235 and 239 have to be carefully considered. Section 231 lays down the general rule that for every distinct offence of which any person is accused, there should be a separate charge and every such charge should be tried separately except in the cases mentioned in sections 234, 235, 236 and 239. If we ignore the exceptions for one moment, as there are 5 accused and 2 separate offences charged against each, there should not only be ten separate charges but ten separate trials. The exceptions under sections 234 and 236 may be ignored as they have no relation to the facts of the present case.
16. The remaining question, therefore, is whether Section 235 or Section 239 or both together could enable the ten charges, some against one set of 4 persons and some against another set of 4 persons, to be tried together in one trial. In Section 235, Sub-section (1) alone has to be considered. It is as follows: '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.' Literally construed, one trial is allowed only where one person is charged at that trial. According to Budhai Sheik v. Emperor 33 C.P 292 : 10 C.W.N. 32 : 3 Cri. L.J. 126 only such a literal interpretation [namely, that Section 235(1) as also Section 234 relates to the trial of a single person for several offences] is permissible. In that case, the learned Judges held that sections 234 to 238 by their terms referred to the case of a single accused and that where there are more than one accused, Section 239 alone permitted a single trial. I am, however, satisfied in my mind that Section 13(2) of the General Clauses Act, which says that words in the singular shall include the plural and vice versa unless there is anything repugnant in the subject or context, is applicable in the construction of these sections. I can find nothing repugnant in the subject or context of sections 234 to 238 in holding that the words 'a person' include a set of persons acting together. That the word 'person' in Section 234 might include a set of persons' has been assumed in Nanda Kumar Sirkar v. Emperor 11 C.W.N. 1128 : 6 Cri. L.J. 321 which thus differs from Budhai Sheik v. Emperor 33 C.P 292 : 10 C.W.N. 32 : 3 Cr.L.J. 126.
17. The questions for consideration under Section 235(1) are, (1) whether more offences than one were committed by the same person (which in my opinion, as I said, includes the same set of persons acting together), and (2) whether, the series of acts in the present case were so connected together as to form the same transaction. If either of these conditions fails, Section 235(1) cannot be availed of to justify a single trial.
18. As regards the events between the 2nd and 4th May which relate to acts done against prosecution 4th witness alone, the set of persons concerned consisted of accused Nos. 1 to 4 alone; as regards the events of the 5th May and later dates against the six prosecution witnesses already referred to, the set of offenders consisted of accused Nos. 1, 3, 4 and 5, excluding the second. Therefore, the first condition fails and hence Section 235(1) cannot be invoked to cure the illegality of the single trial.
19. Coming to Section 239, it is as follows: 'When more persons than one are accused of the same offence or of different offences committed in the same transaction, they may be charged and tried together or separately, as the Court thinks fit; and the provisions contained in the former part of this chapter shall apply to all such charges.' This section enables a joint trial to be held of several offenders (or sets of offenders) only if they were all committed in the same transaction. When the offences are different, (that is, falling under different sections) when the dates of the offences are different, when the sets of persons committing the offences are different, when the persons or sets of persons against whom the offences are committed are different, to hold that they were all committed in the same transaction can, in my opinion, be justified only in very exceptional cases, if at all. I am free to admit in limine that different judicial minds might, where the facts are complicated, arrive at different conclusions as to whether a particular complicated series of acts were committed in the same transaction or not, and one can very well conceive many sets of facts which are on the border line. Under these circumstances, the case law cannot be of much assistance. The general principles as laid down in important cases may be shortly stated thus. In order that a series of acts, done by the same person or set of persona or by different persons or different sets of persons might form the same transaction, there should be such unity of purpose, such continuity of action and such proximity of time in the happenings as would lead a trained judicial mind to grasp them as forming a single transaction. The rule as thus laid down is no doubt indefinite but the cases have not made it more definite and as Abdur Rahim, J., and my learned brother said in Krishna Ayyar v. Emperor 49 Ind. Cas. 337 : (1918) M.W.N. 526 : 24 M.L.T. 96 : 8 L.W. 225 : 20 Cr.L.J. 145 as to the scope and interpretation of Section 235, the matter was considered recently by a Bench of this Court in Choragudi Venkatadri v. Emperor 5 Ind. Cas. 847 : (1910) M.W.N. 66 : 83 M.P 502 : 20 M.L.J. 220 : 7 M.L.T. 299 11 Cr.L.J. 258. There it is pointed out that it is hardly possible to lay down in abstract terms, which would be any more definite than the language of the section itself, what would amount to one and the same transaction. Each case must depend upon its own facts, the general test being whether the acts charged were so connected together as to amount to one transaction. The connection in some cases would have to be sought in a common purpose running through all the acts or in the nature of the occurrence, having regard to the cause and to the time and to the place. It is pointed out in Choragudi Venkatadri v. Emperor 5 Ind. Cas. 847 : (1910) M.W.N. 66 : 83 M.P 502 : 20 M.L.J. 220 : 7 M.L.T. 299 11 Cr.L.J. 258 that the effect of the decisions on Section 235 is that at least in a certain class of cases,--the case there under consideration being one of them--community of purpose' or design and continuity of action are essential elements of the connection necessary to link together different acts into one and the same transaction.' This proposition, be it noted, was not intended to cover all cases and this is expressly mentioned. Then it goes on, 'in such cases, the acts alleged to be connected with each other must have been done in pursuance of a particular end in view and as accessory thereto or perhaps as suggested by the circumstances in which the acts in pursuance of the original design were done and in close proximity of time to those acts. But mere community of purpose is not sufficient, there must also be continuity of action.' In that case, I might state that the trial related only to acts which took place on one and the same date, namely, 20th May 1917, though at different places by different sets of persons in pursuance of the common object, that object being the preventing of the carrying out of any search by the Police in the houses of persons within the limits of the Annur Police Station. A Vague continuity of purpose is of no avail. In Subrahmania Ayyar v. King-Emperor 33 C.P 292 : 10 C.W.N. 32 : 3 Cr.L.J. 126 the purpose to get bribes wherever possible ran through the alleged acts of the accused in that case but that was clearly held not to make all the acts of bribery the same transaction. In Shanker v. Emperor 18 Ind. Cas. 676 : 11 A.L.J. 188 : 14 Cr.L.J. 116 six persons were charged under one charge with having on the 17th of August 1912 at Amura 'committed murder by intentionally causing the death of Sheoratan and Madhava Pasis and in connection therewith having caused injuries to Musammat Maike, wife of Madhava, and Gauri, and having thereby committed an offence punishable under sections 302 and 323 of the Indian Penal Code' The learned Judges began by saying: 'We have seldom come across a charge sheet so carelessly and badly drawn up as the present.' Then they say in another portion of the judgment: 'The charge sheet is a very important document and the drawing up of it a very important act in a criminal trial, and Magistrates cannot exercise too much care when they proceed to frame a charge, etc.' Then they hold that the causing of hurt to Musammat Maike was a perfectly distinct and separate transaction from the murders and could not be tried in one trial with the murders, though all the offences took place on the same date (17th August 1912) and though Maike was the wife of one of the murdered persons. In Baghavendra Row v. Emperor 12 Ind. Cas. 655 : (1911) 2 M.W.N. 467 : 12 Cr.L.J. 567 the accused out a large number of trees on 8 or 9 separate occasions misappropriating the complainant's property. One purpose evidently ran through all the fellings, but it was held that as the occasions were different, the transactions were different. I shall take the following illustration. Twenty Maravars have the common purpose of beating Nadars whenever they 1 pass in marriage procession through the Maravar Street. In the month of May a procession passes and 10 of the Maravars then present out of the 20 assaulted the Nadars then going in procession. Five days afterwards another procession of Nadars goes and (say) 15 of the 20 Maravars assault that procession, then 5 days afterwards all the 20 assault a similar procession. Even in such a case, can we treat all these events as the same transaction and can the different acts against the different persons committed by the different sets of persons be held to form part of the same transaction so as to justify a single trial, especially if grievous hurt was caused on one of the 3 days, but not on the other 2 days and wrongful confinement on another of the 3 days and not on the other 2 days and so on? I must add that in the present case, there is no evidence that there was any common purpose or conspiracy arrived at by all the five accused on or before the 2nd May, to which purpose or conspiracy, the acts up to the 6th might all be referred, in Nanda Kumar Sirkar v. Emperor 11 C.W.N. 1128 : 6 Cr.L.J. 321 the origin and the preparations for the commissions of the separate offences were the same, namely, to prevent foreign salt from being sold at a private fair on the same day. Still it was held that where the persons offended against were several distinct stall holders, the transactions were separate. I am, however, not prepared to go so far, as I think that as the date was the same and the accused were the same and the object was the same, the transaction might be held to he the same; I feel some doubts also about the decision in Mussalappa v. Emperor 6 Ind. Cas. 242 : 7 M.L.T. 367: 11 Cr.L.J. 293 : (1910) M.W.N. 1341 where the grazing of cattle in a reserved forest by 12 accused and the rescuing of the cattle by those 12 and 4 others on the evening of the same day were held not to form the same transaction.] In Queen-Empress v. Fakirapa 16 B.P 491 : 8 Ind. Dec in which the whole matter is fully considered by two learned Judges (Birdwood and Jardine, JJ,), all the four accused, who were members of the Dharwar Police Force, were charged with an offence under Section 330 for acts committed against one Hanma, again under Section 348 for an offence committed against the same Hanma between the 5th and 18th January 1889, two of the three alone for an offence under Section 348 against Rakhma on the 5th January 1889, accused No. 3 alone for an offence under Section 330 committed against Rakhma on the 14th January 1889, all the accused for an offence under Section 330 committed against Yellia between the 15th and 23rd January 1889, all the accused for an offence under Section 348 committed against Yellia during the same period and accused Nos. 1, 2 and 3 for an offence under Section 346 committed against Yellia between the 8th February and 9th March 1889. In fact, this case in Queen-Empress v. Fakirapa 16 B.P 491 : 8 Ind. Dec. (N.S.) 333 resembles closely the present case and both the learned Judges were quite clear that the several acts which were done by the four Police Officers, the accused in that case, (in pursuance of the common purpose of detecting an offence of theft) on different dates against different sets of persons by different sets of the accused could not form the same transaction.
20. Birdwood, J. says at page 496: Page of 15 B.--Ed. 'it would, I think, be an undue straining of the law to apply Section 239 of the Code to several different thefts committed on different days and at different places by different members of a gang of thieves, who were all out on the same marauding expedition. Such a case would go far beyond illustration (c) of Section 239. Of course these illustrations are not exhaustive. Yet they furnish, some indication of the presumable intention of the Legislature. They seem to show that a wider discretion is given to the Courts in British India than in England as regards the trial of more offences than one at one trial, yet it may well be doubted whether it was ever intended that Section 235, paragraph 1, and Section 239 of the Code should be applied, except in such cases as illustrations (e) and (f) of Section 235, to cases where the alleged criminal acts are separated by distinct intervals of time or place and must be proved by distinct evidence. I will not say that members of a Police Force who had conspired to maltreat suspected persons in the course of an investigation could, in no circumstances, be dealt with under the pro-visions of the Code now under consideration for a series of oppressive acts of which they were guilty in the prosecution of their common object but in all such cases, it would be necessary to consider carefully whether the alleged acts were, as a matter of fact, so connected together in one series as to form essentially and strictly the same transaction. In any case, if either the accused are likely to be bewildered in their defence by having to meet many disconnected charges, or the prospect of a fair trial is likely to be endangered by the production of a mass of evidence directed to many different matters and tending by its mere accumulation to induce an undue suspicion against the accused, then, in any such case, the propriety of combining the charges might well be questioned.' Jardine, J., says at page 501 Page of 15 B.--Ed.: 'The question is, whether the Judge is right in treating all the offences charged as forming the same transaction' in the sense in which these words are used in these sections. After two arguments, I am of opinion that the hurting of Rakmava and the wrongful confinement of Yellia in February and March were not part of the 'same transaction' as the hurting of Hanma and Yellia and the wrongful confinement of Hanma and Yellia. The identity of circumstance is impaired by the differences of time, place and persons present. The fact that all the offences charged are said to have occurred in one Police investigation conducted by the prisoners is, in my opinion, a very artificial bond of union. This investigation was, conducted, it appears, at different times by different Policemen tried at this trial; they did not act all four together. A reference to Taylor on Evidence (4th Edition), Section 307 to Section 309, or to 3 Russell on Crimes, (5th Edition), page 368, helps us to understand what is meant by the same or one entire transaction. In the cases cited in Section 309 of Taylor on the doctrine of election, the existence of concurrence or proximity of time appears to have been the general criterion as to whether several felonies could be tried at the same trial.' In Emperor v. Jethalal 29 B.P 449 : 7 Bom. L.R. 527 : 2 Cr.L.J. 480 the above case in Queen-Empress v. Fakirapa 16 B.P 491 : 8 Ind. Dec. (N.S.) 333 was followed by Mr. Justice Batty agreeing with Mr. Justice Russell.
21. In the result, I hold that on the facts of this case there was a dear misjoinder of different transactions constituting different offences by different persons. I would, therefore, set aside the whole proceedings.
22. A re-trial is, or rather at least two retrials ate, necessary as regards accused Nos. 1. and 2 who are responsible Police Officers against whom serious charges have been made. As regards accused Nos. 3, 4 and 5, they are ordinary Police Constables who must have acted under the orders of accused Nos. 1 and 2 and I do not think their re-trial is necessary. Their sentences in the illegal trial having been set aside, the fines paid will be refunded to them if recovered.
23. As regards accused Nos. 1 and 2, I think that this complicated case should be retried in the Sessions Court by the Sessions Judge himself, who is presumably more experienced in criminal trials than the Assistant Sessions Judge. Detailed charges (one charge for each separate offence against each accused) should be framed, each charge containing detailed counts necessary to make the accused acquainted with the particulars of the acts with the commission of which he is charged. There should be at least two separate trials, one for the acts against prosecution 4th witness between the 2nd and the 4th, and another for the acts against prosecution witnesses Nos. 4, 11,12, 13, 14 and 22 between the 5th and the 7th May. As pointed out by the learned Public Prosecutor, I do not see why charge for offences under Section 220, Indian Penal Code, should not be added in each trial against each of the accused with subsidiary counts under that charge. Section 220 is as follows: 'Whoever, being in any office which gives him legal authority to keep persons in confinement, corruptly or maliciously...keeps any person in confinement, in the exercise of that authority, knowing that in so doing he is acting contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years or with fine or with both,' The facts appearing in the evidence seem to make Section 220 aptly applicable. If Section 220 is added, there should be at least three charges for the three offences in each trial against each accused. It is the province of the Sessions Judge to frame the charges for each offence against each accused with subsidiary counts in full detail, and I think it is not advisable for me at this stage to undertake the task of formulating all the charges and counts.
24. Three questions arise on this petition. The first is, whether the whole trial of the accused is bad for misjoinder, the second, whether the charge is bad, and the third, whether certain statements taken by the Superintendent of Police and the Deputy Superintendent of Police from the witnesses in the case were wrongly admitted in evidence.
25. In my opinion the first objection fails. I quite agree with the view expressed by Abdur Bahim, J., in two cases, namely, in Choragudi Venkatadri v. Emperor 5 Ind. Cas. 847 : (1910) M.W.N. 66 : 83 M.P 502 : 20 M.L.J. 220 : 7 M.L.T. 299 11 Cr.L.J. 258 and Criminal Appeal No. 661 of 1917, reported as Krishna Ayyar v. Emperor 49 Ind. Cas. 337 : (1918) M.W.N. 526 : 24 M.L.T. 96 : 8 L.W. 225 : 20 Cr.L.J. 145, that the question whether events form part of the same transaction must eventually depend upon the facts of each particular case. I am of opinion, however, that this is one of the cases where such community of purpose or design and continuity of action exist as are required to link together the different acts into one and the same transaction as stated in Choragudi Venkatadri v. Emperor 5 Ind. Cas. 847 : (1910) M.W.N. 66 : 83 M.P 502 : 20 M.L.J. 220 : 7 M.L.T. 299 11 Cr.L.J. 258 the principle being founded on the language to be found in Emperor v. Sherufalli 27 B.P 135 : 4 Bom. L.R. 930 It is true that there is no evidence that the two chief officers of Police, the Sub-Inspector and the Head Constable, conspired together prior to any action being taken to arrest certain persons and get information out of them legally or illegally. But, in my opinion, prior conspiracy is not required. As long as the actions flow out from one another in a continuous stream, I am of opinion that the doctrine applies. I can find nothing in principle which requires that all the acts should be completed on the same day. The language used in the case is that proximity of time is one of the essentials. I quite agree; because, if there is not proximity of time, there is nothing to show that subsequent actions were part of the train of events. But in this case it is proved that the Sub-Inspector and the Head Constable arrested prosecution 4th witness and brought him back to Koilpatti; and that the Head Constable left Koilpatti the next day and arrested all the rest of the accused. Three of them, namely, prosecution witnesses Nos. 4, 11 and 12 were then brought together and it is charged that each of them was tortured to implicate both himself and the others. These proceedings, which extended over 5 or 6 days, seem to me to be connected together by a natural sequence of events and thus to be a series of acts forming the same transaction within the meaning of sections 235 and 239 of the Criminal Procedure Code. I must express my dissent from some of the observations to be found in the case strongly relied on by the petitioners, namely, Queen-Empress v. Fakirapa 16 B.P 491 : 8 Ind. Dec. (N.S.) 333, though I express no opinion as to the correctness of the decision. I am, therefore, of opinion that the trial is not bad for misjoinder.
26. I am, however, strongly of opinion that there has been a violation of the provisions of sections 221 and 222 of the Criminal Procedure Code. Those sections require that the charge shall state the offence of which the accused is charged and shall contain such particulars as to the time and place and the persons against whom it was committed as are reasonably sufficient to give the accused notice of the matter of which he was charged. In this case there is but one charge consisting of two paragraphs. The first charge is, that all the five accused on or about the 2nd to the 6th days of May wrongfully confined six persons for the purpose of extorting from three of them information which might lead to the detection of an offence. The second paragraph charges that all the five accused caused hurt to the latter three persons for the purpose of extorting a confession. No date is mentioned in the second paragraph, but it must be assumed that the dates intended are the 2nd to the 6th. Now it is not suggested that all the five accused did anything in concert prior to the 5th May, nor is it suggested that all of them arrested all of the persons named in the charge, nor is it suggested that all of them caused hurt to all three of the persons named in the charge. It was impossible for the accused to know what acts on what particular dates were attributed to each or any of them, and it seems to me that they must have been prejudiced in their defence by this charge. Not only that, but the charge does not even contain the words 'or any of them' after the persons alleged it have been confined or hurt, so that the conviction amounts to a finding that all of them confined all the persons stated to have been confined and caused hurt to all the persons to whom hurt was caused. I cannot conceive a charge which would be in grosser violation of the principles of the Code. There would have been no difficulty in framing specific charges against each of the accused with reference to each act in which he took part. In a case which came before this Court quite lately and is reported as Krishna Ayyar v. Emperor 49 Ind. Cas. 337 : (1918) M.W.N. 526 : 24 M.L.T. 96 : 8 L.W. 225 : 20 Cri. L.J. 145, a considerable number of people were charged with rioting and hurt to several members of the Police Force. The greatest care was taken to make the charge specific with regard to each of the accused and no less than thirty-two charges were framed against the accused, with the result that no question of improper charge could be raised. The only answer to be found to ibis serious objection is that the Vakils for the accused never raised the objection, but confined their objection to misjoinder. I am inclined to think that in taking the point of misjoinder they had in mind the badness of the charges and did not realise that if the charges were properly framed they might in a proper case be tried together. But even if no objection was taken, I cannot but think that the accused must have been prejudiced.
27. The last point is as to the statements taken from witnesses by the Superintendent of Police and his Deputy. In my opinion it is impossible to say, nor do I think that either the Superintendent or his Deputy ever formulated in their mind, the positions in which at any time they were acting. The proceedings were initiated by the District Superintendent because he suspected that there had been connection in the charge of dacoity laid against certain accused persons. He acted promptly arid rightly in at once taking steps to get at the truth and he examined a certain number of witnesses, with the result that he was satisfied that the charge was false and in consequence asked the District Magistrate to instruct the Public Prosecutor to apply for leave to withdraw the case, for which leave was granted by the Sessions Judge. He then made a few further inquiries himself and left his Deputy as examine other witnesses in the end he filed before the Magistrate on the 12th, September two documents, Exhibit B and II. It is suggested that Exhibit E is the report required by Section 157 of the Criminal Procedure Code, and Exhibit II, the final report under Section 173, namely, the charge sheet. In Exhibit E we find that he puts himself down as the informant at the Police Station and also as the investigating officer, I am quite clear that he did not consider seriously what the legal bearing of Exhibit E was, and that, when he filed both Exhibits E and II on the 12th September, he was merely putting the result of all his inquiries into the form required by the Code for the institution of proceedings. I am sure that he could not say at what stage he was holding a departmental inquiry and at what stage he began to investigate, nor do I think that the. Deputy Superintendent could be more definite. The confusion arises naturally from the fact that the persons, the subject of the inquiry, were his departmental subordinates and from the fact that he was obviously anxious to inquire into the matter himself so that there should be no further miscarriage of justice. It would be sufficient to my mind to say that having signed as investigating officer he cannot now be heard to say that he was not investigating. But even if that is not so, I am satisfied that the statements taken from the witnesses and signed by them come within the mischief of Section 162 of the Criminal Procedure Code. Section 160 empowers Police Officers making an investigation to require the attendance of persons acquainted with the circumstances of the case, but Section 162 protects such persons from being pinned down to the statements recorded by the Police. The date of the information is given as 12th August and Section 157 requires that investigation shall at once proceed. It is admitted that no parson other than the Superintendent and his Deputy did investigate and I, therefore, feel bound to hold that the statements were recorded in the course of the investigation. I am, therefore, of opinion that Exhibits F, M and K are inadmissible in evidence and their reception vitiates the trial.
28. As my learned brother is of opinion that the trial is bad for misjoinder, I agree that there should be a re-trial of the 1st and 2nd accused in the manner indicated by him. Specific charges should be framed against the accused in those trials and Exhibits F, M and K should be excluded from evidence.