1. The petitioner is the com-plaint. He filed a complaint against five person which was taken on file against accused Nos. 2 to 5 as voluntarily causing grievous hurt, under Section 320, Indian Penal Code, and against 1st accused, who is a Pleader, as abetment of that offence, under Sections 325 and l44, Indian Penal Code. The Town Sub-Magistrate of Trichinopoly who tried the case discharged the 1st accused on the ground that he had not beep identified and framed a charge against the remaining accused of the offence stated. The complainant then applied to the Sessions Judge of Trichinopoly to revise the order discharing the 1st accused and the application was granted, the learned Sessions Judge directing further inquiry which was to include affording several of the prosecution witnesses an opportunity of identifying the 1st accused. In Criminal Revision Case No. 952 of 1928, Reilly, J., refused to interfere with this order.
2. Meanwhile, as I have said, a charge had been framed against the other accused and the first prosecution witness had been further cross-examined after charge. The question then arises as to the correct procedure to be adopted, whether, i as the petitioner urges, the joint trial of all the accused could be resumed or whether the trial of the 1st accused must be conducted separately. The parties appear to have been canvassing this question before the local Courts, for I find an application by the 1st accused, disposed of by the Sub-Divisional Magistrate on 5th January, 1929, in which it is said that there can be no question of a joint trial, and another application by the complainant to the Sub-Magistrate insisting that a joint trial is necessitated by the circumstances. The Sub-Magistrate is, however, of a contrary opinion. I think that the views taken by these Courts are correct.
3. No one disputes the general principle, to which Spencer, Offg. C.J., gave expression in Inre Sogiamuthu Padayachi : AIR1926Mad638 that ordinarily the correct course is to try an abettor with the primary offender or offenders. Where no reason to the contrary appears, the enabling provisions of Section 239 of the Criminal Procedure Code should be availed of. In the present case, however, it is I think, only necessary to consider what a joint trial would involve, to be satisfied that it cannot now be had compatibly with observing the rules of procedure.
4. Suppose, then, that the 1st accused is reinstated in the dock, along with the remaining accused. The proceedings against those accused, as I have said, have extended to the framing of a charge and to the further cross-examination of a witness after charge. One of two courses must then be pursued. Either that part of the proceedings against accused Nos. 2 to 5 which took place after the order discharging 1st accused was passed] must be expunged, so as to restore them to that point in the inquiry which has been reached in the case of the 1st accused, or inquiry must be conducted solely into the 1st accused's case until it reaches the stage at which it stands against the other accused. For adopting the former alternative I can. find no justification. It is not to be found in the order directing further inquiry against the 1st accused. Cancellation of the charge could only be justified on the ground that it had been improperly framed, and no such ground can be alleged. We are left then with the second alternative, and that presents even greater difficulties. Assuming that the inquiry is taken up against the 1st accused at the point where it was dropped, the next step would be the examination of P. Ws. Nos. 6 to 9 touching their identification of the 1st accused, and their cross-examination upon this question. Their statements would be evidence against the 1st accused, but, although what they said might bear upon the case against the others, it would not be evidence against them. The Court would have to distinguish in its mind between what was admissible against one of the accused and what was admissible against the others. It need scarcely be said that such a position would be at variance with the principles upon which a joint trial should be conducted. It would in effect be no joint trial at all, because while the inquiry preceding charge was being conducted against the 1st accused, proceedings against the remainder would be at a standstill.
5. I conclude then that the Sub-Magistrate is taking the only practicable course in deciding to try the 1st accused separately. Since the statements of the prosecution witnesses already recorded must be appropriated to one or other of the inquiries, and cannot, as to any part of them, be made to serve for both, this will involve a de novo inquiry into the case against the 1st accused. The criminal revision petition is dismissed.