R. Bhattacharya, J.
1. This revisional application has been filed by the complainant-petitioner Niharbala Banerjee against the order of the Additional Sessions Judge below allowing an appeal against the conviction of the accused persons who are the opposite parties here.
2. To be very brief, the complainant's case was that on 19-11-69 at about 8 A.M. some of the accused persons, hereinafter described as the Gangulis, trespassed into the house of the complainant and assaulted her brother Surya Narayan. Surya Narayan anyhow freed himself and took shelter in the room. The Gangulis thereafter went away threatening that they would kill Surya Narayan. It is further alleged in tir. 3 petition of complaint that that very day at about 1 P.M. when Surya had been to the local Post Office, the other opposite parties who are made accused, and not the Gangulis, assaulted Surya. The allegation further was that, when the complainant knew about the assault, she came to the spot and the injured Surya was taken to the hospital where he had to stay for treatment for a few days. Subsequently a petition of complaint were filed and the case was started. The learned Magistrate examined several witnesses and on consideration of the materials before him he framed charges in respect of the incidents treating them as of the same transaction. Ultimately the accused opposite parties were found guilty and convicted. Against that order of conviction an appeal was filed and the appeal was allowed and against that order of acquittal an appeal was taken to this Court by the complainant and Mr. Justice S. K. Bhattacharyya allowed that appeal, set aside the order of the appellate Court below and ' sent back the matter to the Sessions Judge, Hooghly to dispose of the same in accordance with law with a direction that the learned Judge would consider the objection raised on behalf of the accused that the two incidents-were separate and they did not form part of the same transaction. After that remand it was held by the learned Additional Sessions Judge below who heard the appeal that the two incidents, according to the evidence on record, did not form part of the same transaction and hence due to the misjoinder of charges the judgment was set aside and the learned Magistrate was directed to split up the two cases, one for the morning incident and the other for the incident alleged to have happened at 1 P.M. and to decide the cases according to law after taking evidence afresh. Against this order the present re visional application has been filed by the complainant.
3. We 'have heard Mr. Banerjee. the learned Advocate appearing on behalf of the complainant-petitioner and also Mr. Mukherjee appearing on behalf of the accused opposite parties. Mr. Durga- das Ray has also made his submissions on behalf of the State.
4. The main point for decision in this revisional application before us is whether the learned Additional Sessions Judge below after hearing the appeal against the order of conviction acted legally and properly to decide, as he has done on evidence on record after trial, that the trial was vitiated due to mis-joinder of charges in respect of two incidents, one happening in the morning and the other at about 1 P.M. of the same day, In this case the learned Magistrate of the trial Court took evidence of several witnesses of the complainant on the two incidents referred to in the petition of complaint. In the petition of complaint it is stated that after the assault by the accused Gangulis, before they left the house of the complainant, they threatened that they would kiirSurya Narayan alias Moni. That very day after about 5 hours when Surya had been to the local Post Office, some of the accused-opposite-parties assaulted Surya, The grievance of the complainant in 1he petition of complaint is in respect of both the incidents. The injured Surya Narayan stated in evidence that all the Ganguly accused said in the morning before leaving his house that they would give him a good beating later on. Regarding the second incident he stated that Gangadhar asked Partha and Pinaki to kill him. Besides this substantive evidence the learned Magistrate considering other facts framed several charges in respect of both the incidents, against the accused opposite parties. Subsequently, however, the witnesses were cross-examined and after due trial the learned Magistrate found the opposite parties guilty in respect of charges, as found by him. The question, therefore, is whether after consideration of the merits of the case on trial, the learned Additional Sessions Judge in appeal could say that the trial was vitiated due to misjoinder of charges on his finding that the incidents did not form part of the same transaction. Section 239 (d) of the old Cr.P.C. is relevant for our purpose. It says.-
The following persons may be charged and tried together, namely:
(a) to (c) ....
(d) persons accused of different offences committed, in the course of the same transaction.
5. Of course, the 'same transaction' has not been defined in the Code. There is no doubt whether the incidents in question formed part of the same transaction or not depends upon the facts and circumstances of each particular case Whether any case falls under S, 239 (dt of the old Code can only be considered before the framing of charge and on the face of the allegations made by the complainant and on the materials on record at the time of such framing of charge. When once the charge is framed by the learned Magistrate on being satisfied that the incidents in question formed part of the same transaction and when evidence is elaborately taken for trial, the learned Magistrate or any other appellate Court cannot say that the incidents in question did not form part of the same transaction because on merits and on evidence at the final decision of the trial it appears to be otherwise. In the case of Supdt. and Remembrancer of Legal Affairs, Bengal on behalf of the Govt. of Assam v. Raghulal, reported in (1935) 39 Cal WN 741. (37 Cri LJ 728) Lort-William. J. agreed to by Jack, J. held relating to Section 239, Cr.P.C. 1898 as follows:
The provisions are intended to deal, therefore, with the position as it exists at the charge, and not with the result of the trial.
This principle has been supported, it appears, in the case of Babulal v. King-Emperor decided by the Privy Council 1938-42 Cal WN 621 : 39 Cri LJ 452. After the framing of the charge the evidence on record cannot en bloc be used against all the accused persons. The learned Magistrate has got to consider the evidence as against each particular accused to see whether he is guilty or not in respect of the charge framed against him. In the present case the charges were framed and the learned Magistrate on consideration of the evidence on record at the conclusion of the trial held the accused opposite parties guilty. The learned Additional Sessions Judge in this state of affairs ought not to have considered the evidence taken during trial or the evidence on merit to reconsider whether it was a fit case for framing such charge, or whether there was any mis-joinder of charges. If on merits it is found that the incidents did not form part of the same transaction, nevertheless, the Court is to assess the evidence as against each individual accused persons in respect of different charges and then come to its own decision on merit. In the present ease, therefore, the learned Judge ought not to have found, as he has seen, that there was misjoinder of charges and that the whole trial was vitiated, Rather the learned Additional Sessions Judge ought to have considered tlie case of the complainant as against individual accused-opposite-parties with reference to the evidence relating to the two incidents and come to his own decision.
6. In this case Mr. Banerjee has referred us to Section 537 of the Cr, P. C. His submission is that even if there be any irregularity, that defect is curable. When we have found that there has been no irregularity, not to speak about illegality, in the framing of charges against the accused opposite parties, we do not think that Section 537 of the old Code is applicable. The question of prejudice to the accused does not arise in the present case. In fact no case of prejudice has been made out in the facts and circumstances.
7. In view of our finding above, without commenting on the merits of the case we hold that the judgment of the Additional Sessions Judge in the appeal was illegal and wilhout jurisdiction and the same is liable to be set aside. The revisional application is, therefore, allowed and the Rule is hearby made absolute. The judgment of Ihe appellate Court below is set aside and the appeal is sent back for decision by the learned Sessions Judge, Hooghly on merit and according to law. The case is pending long and it is desirable that the appeal should be disposed of within a month, if possible, from the date when the records reach there.
Monoj Kumar Mukherjee, J.
8. I agree.