Document Fragment View

Matching Fragments

2. The facts relevant to the argument advanced in support of this application are these : On the 9th December, 1949, the Sub-Inspector of Murliganj Police Station submitted four separate reports for taking action under Sections HO, Criminal Procedure Code, against the four petitioners. One report was against the peti-.tioner Raghunath Singh of village Kumarkhat; another was against the petitioner Sheikh Yusuf of village Mangalwara; the third was against the petitioner Gonar Mian also of village Mangalwara; and the fourth was against the petitioner Sheikh Akloo of village Sarhad. As a result, on the 24th January, 1950, the Subdivisional Magistrate ordered for the drawing up of proceedings under Section 110, Criminal Procedure Code, and directed the petitioners to appear and show cause why they will not be ordered to execute bonds of Rs. 4,000/- each with four sureties of Rs. 1,000/- each to be of good behaviour for a period of three years. It appears that, consequent upon this order, three notices were sent under Section 110, Criminal Procedure Code; one to Raghunath Singh of village Kumarkhat, another to Gonar Mian and Sheikh Yusuf together as both are of village Mangalwara, and the third to Sheikh Akloo of village Sarhad. The proceedings appear to have been kept separately against the three sets of petitioners as shown above, and, for one reason or another, the proceedings could not commence till the 7th March, 1950. On the date, the Court. Sub-Inspector, on behalf of the prosecution, filed the following petition before the Subdivisional Magistrate :

"No doubt, under Section 117 of the Criminal Procedure Code, the enquiry into bad livelihood cases should be made 'as nearly as may be practicable' in the manner prescribed for conducting trials and recording evidence in warrant cases. But we do not think that the provisions of Section 256 of the Criminal Procedure Code indicate that the person called upon to show cause under Section 110 of the Criminal Procedure Code has a right to further cross-examine the prosecution witnesses under Section 256 of the Criminal Procedure Code, inasmuch as the provisions of this section relate to cases where a formal charge, as required by Section 254, has been drawn up and the accused has been called upon to meet that charge. In cases under Section 110 of the Criminal Procedure Code the order of the Magistrate under Section 112 of the Criminal Procedure Code is equivalent to a charge. The object in giving the substance of the information in an order under Section 112 of the Criminal Procedure Code is that the person called upon to show cause may clearly understand the matter that he has to meet in his defence, and a Magistrate . has no power to go beyond the requirements of his order under Section 112 of the Criminal Procedure Code. In warrant cases a charge sheet is" prepared for similar purposes.
"In every case it has to be considered how far the evidence proves association and how far the various persons tried are prejudiced by a joint trial. In the present case, I am satis-fled that the joint trial was desirable as well as permissible."

11. In a later case of the Calcutta High Court in 1934 -- ('Parbaticharan v. Emperor'. 61 Cal 588), it was ruled that a joint trial in a proceeding under Section 110 (f) of the Code of Criminal Procedure is permissible where there is evidence in the nature of a conspiracy and acting in concert. The contention that a joint trial under Clause (f) of Section 110, Criminal Procedure Code, was illegal was also raised in that case, and reliance was placed upon the cases which I have just mentioned, namely, the cases of -- 'Hari Telang ', 27 Cal 781, -- 'Kutti Goundan', AIR 1925 Mad 189 and -- 'Emperor v. Angnu Singh', 45 All 109. Their Lordships examined these cases, and proceeded as follows :

I have indicated already that there had been an allegation against the petitioners from the very beginning that they are members of Raghunath Singh's gang, and are associates of each other. The Magistrate has found them to be so, and this finding is not challenged. I think, therefore, that the Magistrate was right in ordering a joint trial under Section 117 (5) of the Code. A joint trial in a case under Sections 110 is always permissible where there is evidence in the nature of a conspiracy or acting in concert. Indeed, it seems to me that to hold that there can never be a joint trial when Clause (f) of Section 110, Criminal Procedure Code is applied would be going against the statute. Sub-section (5) of Section 117, under which a Magistrate is empowered to order a joint trial, does not exclude Clause (f) of Sections 110. It is equally applicable to all the clauses of Section 110. Moreover, the petitioners cannot be said to have suffered any prejudice by their having been jointly tried, as I have noticed that the learned Magistrate has been careful enough to examine the evidence against each of the petitioners separately.