1. This is a rule granted by us on a petition for a certificate that the decision of the judge and jury in the case of Emperor v. B.G. Tilak : (1908)10BOMLR848 is a fit subject for appeal to His Majesty in Council.
2. Before granting the rule we. required counsel for the petitioner to specify the grounds upon which he was prepared to support his application. He then argued that a certificate should be granted as prayed for each of the lessons specified in paras 32 to 35 of the petition. After hearing his arguments we decided that it was unnecessary to call on the Crown to show cause upon any points, except points (h)(8) and (t) of para 32 of the petition and we accordingly granted a rule upon those points only.
3. The rule has now been argued. We can only grant the required certificate if in our opinion the case is a fit one for appeal. The test of fitness is furnished by various decisions of the Judicial Committee which show the circumstances under which they will entertain appeals in criminal cases. It is sufficient to refer to ex parte Carew  A.C. 719 and Dinizulu v. Attorney-General of Zululand (1889) 60 L.T. 740, in both of which the Judgment was delivered by Lord Halsbuiy. In the former case the rule was stated thus: "It is only necessary to say that, save in very exceptional cases, leave to appeal in respect of a criminal investigation is not granted by this Board. The rule is accurately stated as follows in the case to which their lordships referred in the course of the argument: In re Dillet (1887)12 App. Cas. 459, ' Her Majesty will not review or interfere with the course of criminal proceedings unless it is shown that by a disregard of the form s of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done.'' In the latter case the Lord Chancellor said : 'It appears to them that nothing could be more destructive to the administration of criminal justice than a sort of notion that any criminal case which was tried in any colony from Avhich an appeal lay to this Committee can be brought here on appeal, not upon the broad grounds of some departure from the principles of natural justice, but because some form or technicality has not been sufficiently observed. That is a principle, which they believe, never has been permitted, and never, they trust, will be permitted." Therefore, before granting the certificate asked for, we must be satisfied that there is reasonable ground for thinking that grave and substantial injustice may have been done by reason of some departure from the principles of natural justice.
4. We are not sitting as a Court of error. It is not for us to decide whether such injustice has in fact been done. We have merely to be satisfied that a reasonable case has been made out. The petitioner was tried before Mr. Justice Davar and a special jury on a charge framed under Section 124A, Indian Penal Code, in respect of an article published in the "Kesari," of" which he was editor and proprietor, on the 12th of May, 1908, and on another charge under Section 124A and one under Section 153A in respect of "an article in the "Kesari'' of the 9th June, 1908. He was foutid guilty and sentenced on each of the first and second charges to three years' transportation, and on the third charge to a fine of Rs. 1,000.
5. It is now argued that the trial was illegal as being in contravention of the provisions of Section 233, Criminal Procedure Code, which lays down that for every distinct offence there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in Sections 234, 235, 236 and 239.
6. The accused was originally charged separately before the Chief Presidency Magistrate on the 29th June, under Sections 124A and 153A in respect of the article of the 12th May, and under the same sections in respect of the article of the 9th June.
7. He was committed to the High Court Sessions for trial on both sets of charges.
8. In the Sessions Court (as appears from the note of the official shorthand writer corrected by the learned Judge) the Advocate-General appearing for the prosecution asked that the accused should be tried on the four charges at one trial, contending that the articles forming the subject of the charge, and certain other articles intermediate in point of time, formed one transaction in which the offences charged had all been committed, and that therefore, the joinder was permissible under Section 235 (1), Criminal Procedure Code. The learned Judge objected, that if the charges were consolidated, there would be four charges. The Advocate-General then said he would not put the accused upon the charge under Section 153A, in respect of the first article.
9. The accused, who conducted his own case, with the assistance of several well-known lawyers, objected first, that there was no provision of the Code by which different charges could be amalgamated as proposed, and, secondly, that though the article? were in the course of the same transaction, yet they forms different subjects altogether, and it would be more convenient to have them tried separately, and confusing if they were taken together, that Sections 234 and 235 were permissive, while Section 233 was imperative, that the articles were separate articles dealing with separate aspects of the question, and did not form part of one transaction. Eventually, the learned Judge said he thought it would be extremely desirable, and in the interest of the accused himself, that there should be one trial, and that the whole question should be before one jury ; the accused under Sections 233 was entitled to be tried separately, unless the provisions of Section 234, 235, 236 and 239 came into operation. He had grave doubts as to the applicability of Section 235 as there would be some difficulty in holding that separate newspaper articles written week after week would come under the same transactions but he had no difficulty in ordering the trial under Section 234 provided the charges did not exceed three. The trial then commenced on three charges, one under Section 124A on the article of the I2th May, and one under Section 124A, and another under Section 153A, on the article of the 9th June, with the result above stated.
10. After the verdict and before sentence the accused applied that certain points should be reserved and referred, under Section 434 Criminal Procedure Code, for the decision of a Full Bench. The points mentioned are included in the points raised in the present petition. The Judge, however, declined to reserve any points.
11. Dealing now with the legal argument addressed to us that the trial was altogether unlawful, as having been in contravention of the terms of Section 233, it is apparent that the argument involves two assumptions : (1) that the offences charged were not "committed by the same person in a series of acts so connected together as to form the same transaction," and therefore did not fall within the scope of Section 235 (1); and (2) that the exceptions mentioned in Section 233 are mutually exclusive. The justification for the first assumption is by no means apparent. Besides the preliminary discussion upon the point to which we have already referred, we note that at the trial in addition to the articles of the 12th May and 9th June other articles and notes published by the accused in the "Kesari", from the 12th May to the 9th June inclusive, were put in (Exhibits E to I). The Judge in his charge to the jury pointed out that the subject of all the articles, including those the subject of the charge, was the. advent of the bomb. The accused himself when opening his defence read to the Court a written statement in which he stated that the charged articles were part of a controversy in which he had endeavoured to maintain and defend his views in regard to the political reforms required in India at the present day. In this connection we may also refer to paragraph 36 of the petition now before us. We think, therefore, that there are good reasons for the contention placed before us by the Advocate-General that the charges all fall within the scope of Section 235 (1).
12. Assuming, however, that the Advocate-General's contention just referred to is unsustainable, the petitioner has still to make good the second assumption, namely, that the exceptions mentioned in Section 233 are mutually exclusive. The words of the section do not favour this view. If it had been intended that Section 235 (2) or Section 236 could not be made use of in co-operation with Section 234, this intention could have been easily expressed. If the exceptions are mutually exclusive, the provisions of Section 236 or 237 could never be invoked to prevent a miscarriage of justice arising from a failure to make good all the details of a charge joined with two other charges under Section 234.
13. For example, if A were charged with three thefts in buildings within the year and the evidence established that in one case the theft was committed on the roof and not in the building the accused could not be convicted of simple theft under the powers conferred by Section 237 because the applicability of Section 236 would be negatived by the mere fact of the joint trial under Section 234.
14. We find it difficult to believe that the Legislature intended that a joint trial of three offences under Section 234 should prevent the prosecution from establishing at the same trial the minor or alternative degrees of criminality involved in the acts complained of. For these reasons we think that the exceptions are not necessarily exclusive ; and that Sections 235 (2) and 236 may be resorted to in framing additional charges where the trial is of three offences of the same kind committed within the year.
15. It is of course possible for ingenuity to suggest cases in which the full exercise by the Court of the permissive powers conferred by the sections which we have been discussing may produce embarrassment. In such cases the discretionary power of the Court still remains to decline to avail itself of its full powers.
16. The view which commends itself to us was also taken by another Bench of this Court in the recent case of Emperor v. Tribhuvandas Parshotamdas. (1908) 10 Bom. L.R. 801. In our opinion the learned Judge (though he appears to have overlooked Section 234 (2)) might have allowed the trial to proceed on all four charges without violating the provisions of the law.
17. If we now for the purpose of argument assume that the petitioner has established the second assumption also, we have still to be satisfied that reasonable grounds exist for thinking that grave and substantial injustice may have been done at the trial be ore we can grant the certificate. As we understood the argument on the rule it is not contended that injustice has been done except in so Jar as the alleged disregard of the provisions of Criminal Procedure Code in itself constitutes an injustice but we were urged to grant a certificate as the case would be important as a precedent.
18. We do not think the accused was in any way prejudiced by what took place at the trial. An accused person may it is clear be legally tried and convicted in one trial, under Section 124A or Section 153A, on charges framed on three disconnected articles. How then can it be said that grave and substantial injustice has been done by the arraignment and conviction of the accused on three cognate charges in respect of only two (and those not disconnected) articles.?
19. As regards the question raised by para 32 (s) and (t) of the petition with respect to the number of separate sentences imposed, the jury found the accused guilty of three distinct offences and the Judge awarded a p
Please Login To View The Full Judgment!
unishment for them which in the aggregate is much below the maximum punishment allowed for one of the offence under Section 124A. There has, therefore, been no violation of the provisions of Section 71 of the Indian Penal Code. 20. For the above reasons we discharge the rule. 21. Before leaving the case, however, we think it right to point out that the Advocate-General, according to the note of the official short-hand writer, stated that the charges under Sections 124A and 153A would be treated as being alternative charges or charges framed in order to meet the possibility of one or the other set of facts being proved, in which case each offence might or might not be proved. This may mean either that the second and third charges fell under Section 235 (2), or that they fell under Section 236. The charges as named were not expressed to be in the alternative, and the verdict of guilty was given in respect of each charge separately. There was, we think, nothing illegal in this ; but it it was the intention of the Crown that the second and thud charges should only operate alternatively the result intended can now be arrived at by the exercise by the Government of its powers under Chap. XXIX of the Criminal Procedure Code in respect of the sentence imposed under Section 153A upon the third charge.