# 191iZ 180 SUPRElm OOURT REPoRTS (1962] SOPP. BANWARI v. TATE OF UTTAH PRADESH

- **Citation:** [1962] Supp. 3 S.C.R. 180
- **Court:** Supreme Court of India
- **Decided:** 1960-12-08
- **Case number:** Criminal Appeal No. 80of1961
- **Bench:** J. L. I\ Apur, A. K. SA1uu.u, i{AOHUBA/~ DAYAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/191iz-180-suprelm-oourt-reports-1962-sopp-banwari-v-tate-of-uttah-pradesh-2368
- **Pages:** 17

## Headnote

<...:rimiu'!'I 1~rial-1'hret co1n.mitment orders for three offence~
-uffe11cts. lna&/e at one trial-Se<Jaiu11a Judge recording all
tt'1dence m one tri<il-Leyality of trial-Charges-l'oll'er of
1:Je.'>Si~1wJudge to subat1'tute churycs framed
by Cum11iilli11g
Alugistrak-.Jl urder-(}onunon Intention-Indian 1'enal Code,
1860 (Act .XLV of 1860), s. 34-Co<k of Criminal Procedun,
1~98 (V of 1898), "· l!26, 234, 23.9, ~37.
llanwari armed with a gun and Rani Charan arrnc<l with
an axe were going together when they met Lakhan.
After
some talk Banwari shot at and killed Lakhan.
They then
proccc<lt:d together for son1e distance \\-·hen they met Bhag\van.
After some talk llanwari shot at and killed Jlhagwan.
Thereupon the villagers started pursuing them and they ran and
Bany..·ari shot aud injured Narayan.
One report was lodged
of the three incidents and the police sent up thre.e charge
sheets. 'l'he !vlagistrace ma:de three orders of commitrncnt,
framing charges against the two appellants under s- 302 and
s.307 rrad withs- 34 Indian Penal <':ode respectively in respect
of the first incident, under s. 302 read with s. 34 in respect of
the second incident and under s. 307 read with s. 34 in respect
of the third incident.
The
Se~sions Judge framed certain·
charges describing thern as a1nen<lcd charges, undrr s. 302
read with s. 34 against both accused for the murder of Lakhan,
under s. 302 against Banwafi for the murder of Bhagv:an and
under s. 307 against Banwari for the attcn1pted murder of
Narayan. He recorded the entire evidence in one trial and
by a comn1on judgment convicted Ban"·ari and Ram Charan
and scntcncetj the former to death and the latter to in1prison·
ment for life. The appellants contended that the trials were
illegal as the procedure followed by the Sessions Judge w,15
not v.·arrantcd by law, that Ram .Charan's convictio11 for the
murder of Bhagwan and attempted murder of ·Narayan· \Vas
bad as he was not tried for those offences and that the conviction of Ram Charan with the aid of s. 34 was bad as he had
no common intention with Banwari to com1nit any of the
offences.
Held, that though the procedure of recording evidence
in one trial with respect to offences which were the .:>ubjcct of
diffrrent trials was unwarranted the trials were not vitiated
-
3 S.C.R.
SUPREME COURT REPORTS
181
on this account. The procedural error was curable under
ss. 537 of the Code of Criminal Procedure.
The three offences with which the appellants were
charged were of the same kind and one joint trial of those
offeqces was justifiable under s. 234 Code of Criminal Procedure. A joint trial of both the appellants for the three
offences each of which was alleged to be committed by them
jointly within twelve months would have been justifiable
under ss. 234 and 239 of the Code.
Even if there were three
committal orders the Sessions Judge could try the accused at
one trial if the provisions of ss. 234 to 239 permitted a joint
trial.
In the present case the Sessions Judge did not purport
to consolidate the committal orders and try the accused at one
trial though really that is what actually happened' when he
recorded evidence in one case only and presumably examined
the accused also once. The trial was not vitiated by any
procedural error nor had any prejudice been shown to have
been caused to the appellants.
Payare Lal v. The State of Punjab, (1962) 3 S.C.R. 328,
referred to.
Ram Charan had been charged for all the offences for
which he was convicted.
The s0-c,lled amended charges
framed by the Sessions Judi;e were really additional charges and
not in substitution of the charges framed by the Mclgistrate.
The Sessions J ud!!e had no power to drop any charges under
which the accused had brcn committed for trial ; he could
frame a charge, or add to or otherwise alter the charge as
the case may be where a person was committed for try without
a charge or with an imperfect or erroneous charge.
But the
conviction of Ram Charan could not be sustained. He did

## Text

191iZ
180 SUPRElm OOURT REPoRTS (1962] SOPP.
BANWARI
v.
:::.TATE OF UTTAH PRADESH
( J. L. I\ APUR, A. K. SA1uu.u and i{AOHUBA/~
DAYAL, JJ.)
<...:rimiu'!'I 1~rial-1'hret co1n.mitment orders for three offence~
-uffe11cts. lna&/e at one trial-Se<Jaiu11a Judge recording all
tt'1dence m one tri<il-Leyality of trial-Charges-l'oll'er of
1:Je.'>Si~1wJudge to subat1'tute churycs framed
by Cum11iilli11g
Alugistrak-.Jl urder-(}onunon Intention-Indian 1'enal Code,
1860 (Act .XLV of 1860), s. 34-Co<k of Criminal Procedun,
1~98 (V of 1898), "· l!26, 234, 23.9, ~37.
llanwari armed with a gun and Rani Charan arrnc<l with
an axe were going together when they met Lakhan.
After
some talk Banwari shot at and killed Lakhan.
They then
proccc<lt:d together for son1e distance \\-·hen they met Bhag\van.
After some talk llanwari shot at and killed Jlhagwan.
Thereupon the villagers started pursuing them and they ran and
Bany..·ari shot aud injured Narayan.
One report was lodged
of the three incidents and the police sent up thre.e charge
sheets. 'l'he !vlagistrace ma:de three orders of commitrncnt,
framing charges against the two appellants under s- 302 and
s.307 rrad withs- 34 Indian Penal <':ode respectively in respect
of the first incident, under s. 302 read with s. 34 in respect of
the second incident and under s. 307 read with s. 34 in respect
of the third incident.
The
Se~sions Judge framed certain·
charges describing thern as a1nen<lcd charges, undrr s. 302
read with s. 34 against both accused for the murder of Lakhan,
under s. 302 against Banwafi for the murder of Bhagv:an and
under s. 307 against Banwari for the attcn1pted murder of
Narayan. He recorded the entire evidence in one trial and
by a comn1on judgment convicted Ban"·ari and Ram Charan
and scntcncetj the former to death and the latter to in1prison·
ment for life. The appellants contended that the trials were
illegal as the procedure followed by the Sessions Judge w,15
not v.·arrantcd by law, that Ram .Charan's convictio11 for the
murder of Bhagwan and attempted murder of ·Narayan· \Vas
bad as he was not tried for those offences and that the conviction of Ram Charan with the aid of s. 34 was bad as he had
no common intention with Banwari to com1nit any of the
offences.
Held, that though the procedure of recording evidence
in one trial with respect to offences which were the .:>ubjcct of
diffrrent trials was unwarranted the trials were not vitiated
-
3 S.C.R.
SUPREME COURT REPORTS
181
on this account. The procedural error was curable under
ss. 537 of the Code of Criminal Procedure.
The three offences with which the appellants were
charged were of the same kind and one joint trial of those
offeqces was justifiable under s. 234 Code of Criminal Procedure. A joint trial of both the appellants for the three
offences each of which was alleged to be committed by them
jointly within twelve months would have been justifiable
under ss. 234 and 239 of the Code.
Even if there were three
committal orders the Sessions Judge could try the accused at
one trial if the provisions of ss. 234 to 239 permitted a joint
trial.
In the present case the Sessions Judge did not purport
to consolidate the committal orders and try the accused at one
trial though really that is what actually happened' when he
recorded evidence in one case only and presumably examined
the accused also once. The trial was not vitiated by any
procedural error nor had any prejudice been shown to have
been caused to the appellants.
Payare Lal v. The State of Punjab, (1962) 3 S.C.R. 328,
referred to.
Ram Charan had been charged for all the offences for
which he was convicted.
The s0-c,lled amended charges
framed by the Sessions Judi;e were really additional charges and
not in substitution of the charges framed by the Mclgistrate.
The Sessions J ud!!e had no power to drop any charges under
which the accused had brcn committed for trial ; he could
frame a charge, or add to or otherwise alter the charge as
the case may be where a person was committed for try without
a charge or with an imperfect or erroneous charge.
But the
conviction of Ram Charan could not be sustained. He did
nothing in any of the three incidents. The facts and circum·
stances of the case did not establish that he h~d a common
intention 'vi th Banwari to commit any of the offences.
There
was no allegation that he had enmity with any of the victims
or that there was any pre-concert betWfen him and Banwari.
From the fact that he was in the company of. Banwari all
along no inference of common intention could be drawn.
The question of his dissociating from· Banwari did not arise
when he had n0t associated himse]f in the first instance with
him.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 80of1961.
Appeal by special leave from . the judgmPnt
and order dated December 8, 1960 of the Allahabad
196!
Banwari
v.
.State nf
Uttar Pradesh
1!62
Br.nu,ari
v,
State of
Uflar P1adtJh
182
SUPREME COURT REPORTS [1962] SUPP.
High Court in Criminal Appeal No.
1517 of 1960
and Referred No. W4 of 1960.
A. S. R. Chari, 0. P. Ra11il and K. K. Sinha, for
the appellants.
G. C. Mathur and C. P. Lal, for the respondent.
1962. February 14. The Judgment of the court
was delivered by
Rcg\ub" TJa;al J,
RAOH'C:BAR
DAYAL, J.-Banwari and Ram
Charan appeal, by special leave, against the ocder
of the Allahabad High Court dismissing their appeal R nd confirming their conviction by the II Additional Sessions Judge, Etnwah. Banwari W!ls conviC'ted of the offences undPr s. 302 Indian Penal
Code for committing the murder of Lakhan Singh
and Bhagwan Singh and also for an offence under
s. 30i Indian Penal Code, for having attcm ·Jt(id to
· Commit the murder of Babu Singh.
Ram Charan
was convicted of the same throe offences mad with
s. 34, Indian Penal Codo.
The facts leading to the appeal nre these,
Banwari, a Lodh by c'ast~i. and Ram Charan, armed
with a gun and axe respeetivi>ly, pa8sed the field
of Lakhan Singh, Lakhan Singh asked Banwari
as to where he was going.
Banwari replied that
he was going for shooting
birds. I.a.khan Singh
turned back.
Banwari fired two shots at Lakhan
Singh.
Lakhan Singh fell clown and died.
Banwari and Ram Charan, thereafter, proceeded south-wards and at a distance of about six
or seven furlongs, mot Bhagwan Singh, who was
grazing his cattle. Bhagwan Singh
questioned
Ranwari as to where he was going.
Banwari said
he was going to shoot
crocodil~s in
the river.
Bhagwan Singh said there were no crocodiles in the
river and asked Banwari to go back and look to
his work. When Bhagwan Singh turned towards
so~th1 Banwari fireq a s}iot. at liiw,
Bhai;wan
-
3 S.C.R.
SUPREME COURT REPORTS 183
Singh sat down. Banwari again fired a shot at
him. He further fired two more shots, Bhagwan
Singh died.
The village people pursued the two appellants and Banwari fired at them. He fired at Babu
Singh, but hit Narayan Singh.
One report was lodged at the Police Station
with respect to these incidents. The police, after
. Pnquiry, sent up three charge-sheets ·. under s. 173,
Code of Criminal Procedure.
The Magistrate registered three cases, one with respect to the murder
of Lakhan Singh, another with respect to the murder of Bhagwan Singh and the third with respect
to the offence under s. 307 Indian Penal Code, for
shooting at Babu Singh and Narayan Singh. Ultimately he committed both the accused for trial to
the Sessions Court in each of the cases. Sessions
Trials Nos. 34, 37 and 38 of 1960 were registered
on the basis of those three committal orders.
In the case with respect to
the murder of
Lakhan Singh, the Magistrate framed one charge
under s. 302, Indian Penal Code, against Banwari
and another charge age.inst Ram Charan for an offrince under s. 302 read with s. 34, Indian Penal
Code.
In the proceedings with respect to the murder
-
of Bhagwan Singh, he framed one charge aaainst
both the accused Banwari and Ram Charan, for an
offence under s. 302 read with s. 34, Indian Penal
Code.
Lastly, in the proceedings
un~er s,
307, be
again framed a common charge agamst both the
accused for an offence under a. 307 read with s. 34
Indian Penal Code.
At the commencement of the hearin" of the
Sessions Trial No. 34 of 1960 on July 18, 1960, on
w4ic4 date presumabl;Y the otqer two Sessions
1962
Banwari
v.
Slate of
Uttar Pradesh
Raghubar Dayat·J,
1961
Banwari
v.
State aJ
Uttar Pradesh
Rt11hubar Dayal J,
184
SUPREME COLTRT REPORTS [19621 SUPP.
Trials wore also fixed for hearing; the loamed Sessions Judge framed ccrtrtin charges describing them
as amend Pd chrtrgcA.
In Sessions Trial X o. 3t of
1960, ho framed a chargo against Banwari an<l Ram
Charan for an off<•nce un<ler s. 302 read with s. 34
Indian Penal Code with respect to the murder of
Lakshan Singh. In Sessions Trial JI o. 37 of 1960 he
framed an amended charge against Banwari under
s. 302 Indian Penal Corle, for his committing t.ho
murder of Bhagwan Singh. In Se8sions Trial No. 38
of 1960 he framed an amended charge against
Banwari of an offence under s. 307 Indian Penal
Code, for h1wing shot. a.t Bahu Singh and Narayan
Singh with such intention and knowledge !Ind in
such circumst<LIJC<'S tl11tt if by that act ho had cause(! the <leath he would have been guilty of murder.
He rear! over and explainerl the amended charges
to the accused.
In the proceedings of the Court date<l July
18, 1960, thn l<•arned
~essions Judge noted:
"The amended charge was read out in
Court and explained to the prisoner (Re<•tion
2il., Criminal Procedure CodP) who
pleads
not guilty.
The S.T 3i /<iO and 38/60 are consolidated
with the case and evidence is recorder! in the
present case (unrler section 234 Cr. P.C.). The
L.D.G.C. op('ned his case and examine<! the
following witnPsses."
The learnt·d Session~ Judge opened hiR judgment with the following obsPrvat.ion:
"Three 8essionB trials No~. 34, 37 and :!8
of 1960, in which
both Ilanwari and Ram
Charnn figure a;i accused persons, were hPard
together .\nd arn heing disposed of hy on<'
judgment. Banwari f~CCtJscd stands charge<!
under section 30~ Indian Penal Cncfo f"r hav·
ing committed the murders of Lakhan Singh
I
•
-
3 S.C.R.
•SUPREME COURT REPORTS
185
and Bhagwan Sfogh and also under section
307 Indian PenaLCode for having made an
attempt to kill Narayan Singh on 12th November, 1'!)59, in village Boorhadana, police station Dibiapur.
He a.long with Ram Charan
ha.s further been charged under section 302
read with 34 and 307 read with 34 of l he
Indian Penal Code for having in furtherance
of their common intention committed the
above murders and made a.n attempt to kill
Narayan Singh."
In his order at the end of the judgmem the
learned Additional Sessions Judge said:
"Banwari accused is found guilty under
section 302 of the Indian Penal Code for the
murder of Lakhan Singh and is convicted and
sentenced to death. He is further found guilty under section 302 of the Indian Penal Code
for the murder of Bhagwan Singh and is convicted and sentenced to death for this incident also.
He shall be hanged by the neck
till he be dead.
He is further found guilty under section
307 of the Indian Penal Code and is convicted and sentenced to eight years R. I.
The other ace-used Ram Charan is found
guilty under section 302
read with 34 'Of the
Indian Penal Code for the murder of Lakhan
Singh and is Convicted and sentenced to life.
imprisonment.
He is farther found guilty
under section 302 read with 34 of the Indian
Penal Code for the murder of Bhagwan Singli
and is convicted and sentenced to life imprisonment on this count also.
He is further
found guilty under section 307 read with 34 of
the Indian Penal Code and is convicted and
sentenced to five years R. I. The sentences
shall run concurrently. He is in custody and
shall be detained to serve out his sentences.
1962
Bonwari
v.
Srate of
Uttar Pradesh
Ra:hubar Dayal J.
196~
Banwari
v.
Stale of
Uttsr Prad,1h
11.thubar Dayal J.
186 SUPREME OOURT REPORTS [i.962] SUPP.
This judgment governs all the Sessions
Trials Nos. :H, :~7 and 38 of60 and a copy of·
it shall be placed on the records of 8.T. Nos.
37 and 38 of 60 ."
The criminal &ppcal filed by the appellants in
the High Court perported to be an appeal against
the order of the Se~sions Judge in Criminal
S1)~S·
ions Trial Nos. 31, ~7 and 38 of 60 and the grounds
taken in tho appeal were that the conviction was
against the weight of evidence on the record, that
no offence was made out from the evidence of the
prosecution witnesses anrl that tho sentence was
too Heverc.
The High Court considerer! the CMe proved
against the appellants and dismissed their app~al.
Mr. Chari, for the appellants,
has urged the
following points:
(I) Ram Charan, appellant, was not tried
for the offences of committing the murdor of Bhag·
wan Singh and of attempting t,o murder Babu Singh
and Narayan Singh, as the learned Sessions Judge
tried the appellants with
respects to the offon~c8
mentioned in tho amended charges which 'l'ero road '
and explained by him to the accused, and there·
fore nam Charan's conviction for those tWl' offoncc8
wns• bad,
(2) The Sessions
,Judge
conducted
thrrw
separate trials on the basis of the three commit·
ment orders, but recorded evidence in one case onlv
. i. e., in
Ses.~ions Trial No. :!4 of l91i0.
Such a
procedure which in a way amount<:<l t.o the amal ·
gamnt.ion of the three .Ses8i6ns Tria18 into one,
was not warrantecl by the provision of the Code
of Criminal Procedure and that this error in tho
mode of trial, being not cnrablo under
R. :i:n of
the Code; vitiated it.
( 3) If the trial be held to be Ya lid, the
-
3 S.C.R.
SUPREME COURT REPORTS
187 .
sentence of death on Banwari errs on the side of
severity.
(4) Th'e conviction of Ram Charan is bad as
there is no evidence on the record that the various
offences were committed by Banwari in furtherence
of the common intention of both Banwari and Ram
Charan. In the absence of any evidence about
previous concert and of Ram Charan's having any
motive to join in the commission of the offences,
the fact that Ram Charan was with Banwari at the
time the three offences were committed is insufficient to convict him.
Mr. Mathur, for the State, has urgP.d that the
learned Sessions Judge framed amended charges in
addition to the ()barges framed by the Magistrate,
that both the appellants 'could be· legally tried for
the v.arious offences in one trial and that Ram
Charan's conviction is correct.
The first question therefore to determine is
whether the learned Sessions Judge framed amended
charges in addition to the charges which had been
framed by the Magistrate and for the trial of which
the Magistrate had committed the appellants to the
Court of Sessions, or he su bstimted those charges in
the place of the ones prepared by the Magistrate. The
learned Sessions Judge, in his judgment, has clearly
said in the paragraphs quoted above, that Banwari
stood charged for the three offences simpliciter and
also jointly with Ram Charan for the three offences
read with s. 34, Indian Penal (')ode.
This· clearly
indicates that he <.lid not contemplate the amended
charges to be in substitution of the charges framed
by the Magistrate. This is also indicated by two
further facts.
The learned Sessions Judge had no power,
under the Code of Criminal Procedure, to drop any
charges under which the accused had been committed
for trial. He can in the e:icercise of the :powers under
1~62
Banwati
v,
Stole ef
Utto• Privl<•h
Roghubar Dayol.J.
)
1~62
Rar1u·ari
v.
Stott of
(JltM Jlradtsh
Ra"ghubar Dn;~o/ J.
188 SUPREME COURT REPORTS [1962) SCPP.
8. 226 of the Code of Criminal Procedure, frame
a charge, or add to or otherwise al!Rr the charge as
the case may be in cases where a person is committed for
trial without a charge or with au
imperfect or erroneous charge. As the Magistrate
had not framed a charge under s. 302, Indian Penal
Code, simpliciter, with respect to the murder of
Bhagwan Singh and a charge under R. 30i, simplicitcr, for attempting to murder Babu Singh and
Narayan Singh, the learned Sessions Judge thought
it neceSRary to frame such charges against him and
he did so.
Banwari was not charged by the Magistrate under 8. 302 read with e. 34, Indian Penal
Code for the offence of commit.tin11 the murrlcr of
Lakhan Singh and therefore the .. Ses~ions Judge
prt·pared the charge against both Blmwari a.ncl Ra.m
Charan with respect to such an offence. It is only
this amended charge which was
in
reality in
substitution of the charge framed by the Magistrate.
Ur, it may be said, that this amended charge was
the charge framed by the Magistrate, but amended
hy the Sessions .Judge by adding the name of
Banwari among the
pPr~on8 charged and altering
the languag-e as a cpnseguence of it.
Lastly, t.he final order of the learned SPssion8
Judge recorded eonviction of Banwari
foe tho
ofTen<'eS
~implicitcr and of Ram Chara11 for those
offencPR n•a.d with s. 34, Indi:tn Pena.I Code: At that
stag.,, there was no point. in recording the conviction of Banwari with rPspect to the chargeB for tho
vario118 ofTPnCPS read withs. :J4, Indian P!·nal Code.
It was, however, rlesirahle that at the commencement of thn trial Banwari charged both for offences
sim pliciter and for offences read with s. 34, Indian
Penal Codi>, to avoid any contention in future in
case ho be conviete<l for an ofT .. nce with which he
was uot a.dually charged, i. e. convicted of an
offence rear! with s. :14, Indian Penal Code when
there was no such charge against him or he c,mvic-
•
,
3 s.c.R. SUPREME COURT REPORTS
IS()
ted of an offence simpliciter there being no charge
for that offence.
We are therefore of opinion that there is no force
in the argument that Ram Charan was convicted of
an offence with which he was not.charged and tried
by the Sessions Judge.
The learned Sessions Judge did not comply
with the provisions of s. 271 of the Code of Criminal
Procedure inasmuch as he did not read over and
explain the charges framed by the Magistrate. This
omission on his part, however, does not vitiate the
trial in view or' s. 537 of the· Code when it is not
shown that any prejudice has resulted to the appellants on account of this omission.
I
'
.
The procedure· of recording evidence with
respect to the offences which were the subject
of different Sessions Trials in the proceedings of
one Sessions Trial alone, is not certainly warranted
by the provisions of the Code of Criminal Procedure.
Every separate trial must proceed separately with
result that every proceeding, including the recording of evidence, in each trial should be separate.
The question, however, is whether this wrong procedure adopted by the learned Sessions Judge, has
vitiated the trial, irrespective of the fact whether
prejudice has been caused to the a,ccused or not.
It is contended for the State that both the
appellants, Banwari and Ram Charan, could have
been tried at one trial for the offences they were
charged with in view of the provisions of ss. 234
and :l35 of the Code of Criminal Procedure. We are
of opinion that the provisions of s. 235 Cr. P. C.
would
not have
justified one trial for these
offences.
We do not have the three chargesheets submitted by the police to the Magistrate,
but the fact that three charge-sheets were submitted
and that the Magistrate made three commitment
orders indicate that th~ prosecution did not come
to Court with the allegation that three offeaces
1962
Banwari
".
State of
Uttar Pradesh
Raghu~.ar Day,al o!.•
11161
..
Statt of
Uttor PtadtJh
R•gluhor Da)'<ll J.
'\. -
----
I!JO SUPREME COURT REPORTS [1962) SUPP.
were committed in the course of the same transaction. However, we agree that- the provisions of
ss. 234 and 239 of the Code of Criminal Procedure
would have justified the joint trial of the appfllants
for the offences· they were
charged with and
tried.
Section 234 allows the trial of a person accused
of three or less number of offences of the same
kind commitkd within the space of twelve months,
and provides that offences of the same kind are
those which are punL~hable with the same amount
o( punishment under the same section of the Indian
Penal Code or of any special or local law.
The two
offences under s. 302 with respect to the murder
of Lakhan Singh and Bhagwan Singh arc punitthable under the same section of the Indian Penal Code
with the same amount of punishment. In viow of
the proviso to s. 234, an offence of attempting to
commit an offence is of the same kind as that other
offence. Thus the offence under s. 307 Indian Penal
Code, is of the same kind as the offence under
s. 302.
The three offences of which the appellants
were charged, therefore, aro of the same kind and
one joint trial of those offences would therefore be
justified under s. 234 of tho Code.
Section 239 lays down the joinder of persons
at one trial and provides that persons :iccused of
more than one offence of the same kind within the
meaning of s. 234 committed by them jointly within
a period of twelve months could be charged and
tried together. Therefore, the trial of both Banwari and Ham Charan for tho aforesaid three offences each of which was alleged to have been committed by them jointly within twelve months, would
have been justified.
The learned Sessions Judge did not.,
however
purport to try tho appellants at one trial, as is clear
from the record that he proceeded with the three
trials but just recorded evidence in only one.
3 s.c.k. sbi>REME COURT REPORTS
191
It has been urged that amalgamation of three
different Sessions Case11 is not' warranted by the
provisions of the Code of Criminal Procedure.
The Code simply provides by ss. 233 to 239 that
ordinarily each distinct offence must be separately tried except in cases covered by the pro·
visions of ss. 234, 235, 236 and 239. It is clear
that if separate commitments had been made of
such distinct offences, which did not come within
the exception to s. 233, they c0uld not be tried at
one trial by consolidating those three cases. But
this does not mean that if there had been sepa·
rate commitments of person who could be tried together at one trial, or of the same person for offences which could be tried together at one trial, the
accused could not be tried at one trial. It often hap·
pens that persons accused of committing a particular
offence or offences jointly or in the course of the same
transaction are not put up for trial at the same time,
usually for the reason that some of them were not
available. They may be available later on and sub·
sequently committed for trial. If no trial has proceeded with respect to the first commitment by that
time, the Se~sions Judge is not bound to have two
separate trials, one with respect to each commitment. He can certainly try all the accused at one
tri<tl and in that way consolidate the proceedings
on t.he two committal orders in one. The committal order just gives the Sessions Court cognizance .
over the trial of the persons committ.ed. The
committal order does not bind the Sessions Jlj.dge
to try those persons alone at one trial, who have
been committed by the particular committal order.
The question of the trial of the various committed
persons does not depend on the number of committal orders, but on the provisions of ss. 233 to 239 of
the code. If one trial can be justified under those
provisions and there is no prejudice to the accused,
the Sessions Judge can certainly consolidate the
committal orders in those cases and try the accused
1951
Banwari
v.
Stale of
U ttar PradeJh
Raghubar Dayal J.
19G2
Banwa1i
"·
Stalt of
Uttar Pradesh
Raglwb111 Dayal .J.
192 SUPREME COUR'f REPORTS [1962] SUPP.
at one trial.
He may, for the purpose of the trial,
frame a fresh charge with appropri,~te counts against
the accused, in substitution of tho charges framed
by the Ilfagistrate in the different committal proceedings.
ff tho persons have been committed by one
committal order alone with rcspccL to different
offencos which could not be tried at one trial in
accord11nce with th<'se sections, the joint trial uf
those persons on those charges would be illegal.
This makes it clear that the validity of a joint trial
before the Sesoions JULlge is dependent on the fact
whether the provisions of the Code justify one joint.
trial or not.
\Ve therefore hold that though a Sessions
J udgo cannot try at one trial persons committed
under different committal orders with respect to
distinct offencea whose joint trial is not warranted
by the provisions of ss.:!34 tu 2:39 of the Code, he is
competent tu try at one trial pernons who can be
tried at one trial under tho provisions of thoso
sections even if there had hoen separate committal
orders.
In the present case, however, the learned
Sessions Judge did not purport to consolidate tho
committal orders aud try the accuse'.! jointly at one
trial, though really that is what actually happened
when he recorded evidence in one case only and
presumably ho examined the· accused also once. He
heard the arguments once and he actually delivored
one common judgment in all the three Sessions
Trials.
There therefore duos not really arise in the
present ca.so the question that the Sessions Judge
wrongly a.malgamatod or consolidated the three
Sessions Trials. ill the circumstances of this caso
the trial is not vitiated by any procedural error nor
has any prejudice bcou shown to have been caused
in the conduct of the trial or its result.
Wll have already said that the proceedingR in
each separate trial should be separate and that on
•
3 S.C.R.
SUPREME COURT REPORTS
193
that basis the procedure adopted by the learned
Sessions Judge was wrong.
The question for
determination, then, is whether his following the
wrong procedure vitiates the trial and the conviction of the appellants or is curable under s. 537 of
the Code.
·
We are of opm10n that such a defect does
not invalid<tte the trial in view of s. 537 of the
Code.
In Payare Lal v. The State of Punjab (1) this
Court said:
"In rega,rd to this section ( s. 537), it was
said by the Privy Council in Pulnlcuri Kottaya
v. King Emperor (L. R. 74 I. A. 65), at p. 75,
"When a trial is conducted in a manner different from that prescribed by the
Code (as in N. A. Subramania lyer's case,
L. R. 28 I.A. 257), the trial is bad, and
no question of curing an irregularity
arises; but if the trial is conducted substantially in the manner prescribed by
the Code, but some. irregularity occurs in
the course of such conduct, the irregularity can be cured under section 537, and
!Jone the Jess so because the irregularity
rnvolves, as must nearly always be the
case, a bniach of one or more of the very
comprehensive provisions of the Code.'
It seems to us tha,t the case falls within
the first category mentioned by the Privy
Council. · This is not a cas.o of irregularity but
want of competency."
As a]rAady held, tbe impugned procedure adopted
hy the learned Sessions Judge in the persent case
doAs not relate to the competency of the Court to
try the various offences a,t one trial.
(1) [19G2]
3 S.C.R. 328.
196S
11anwari
v.
Slate of
Uitar Pradesh
Raghubar Dayal J.
1962
Banwari
v.
Str.le rJj
Uttar Pradesh
Rn:hub.Jr Dayal J,
l!l4 SUPREME COURT REPORTS [1962J SUPP.
The amendment made in s. 537 of the Code by
the Code of Criminal Procedme (Amendm<'nt) Act,
l!l55 (Act XX\'I of l\l:)5)does not in any way go in
favour of th(' app<'llants as the result of the amendment is that the scope of s . .537 is made wider,
covering cases nf misjoinder of charges as well.
We therefore hold that tbe trial of the appellants had been valid.
Ramrnri bas heen sentenced to death under
s. 302 Indian Penal C'ode. Mr. C'bari urges that Jlanwari must have shot at Lakhan Singh as a result of
the latter giving provocation as allrged by Banwari
in his statement ns, otherwise, there was no motiv"
for
hi~ ~hnot ing at Lakhan Singh and tha~ thoreforn the less<'r. penalty for the offence of murder
would he the prnpcr sentence <1gainst him. We do
not agrco.
The Courts below di~helievPd Banwari'a
version of the oom·ersation with Lakhan Singh.
Even if that conversation be believed, we do not
think tbat that Rhould have provoked him to such:
an cxh~nt tlmt be should have fired at. Lakhan ~in11h
not only once, bnt also a second time. There could
be no jnstificatio11 for his firing at Bhagwan Singh
who is not Aaid to have giv!'n any provocati(•n evt'n.
Banwnri fire<! s"Ycral shots at. Bhagwan Singh.
In
the circnmstanr.e~, we do not see any reason to Cull·
si<l<'r thP sent€1we of death to be unjustified and to
reduce it.
So far us Ham Charan is concl'nwd, we are of
opinion that bis ronvietion cannot be sustained. He
did nothing nt any of thl• thn'e incidents. His <:onduct in remaining with Ranwari throughout cannot
lead to anv conclusion that he had comm"n int<>ntion with Banwari to shoot at Lakhan Singh or
Bhugwan Singh or Bahn Singh arnl Narain Singh,
what, to s"~' of his IHL\•ing a common inl<'ntion with
Banwari to commit the mmder of thu firHt two.
It is not tbe caHe of the pro•erntion that Ban·
wari and Ram Charan had an) enmity with any of
3 S.C.R.
SUPREME COURT REPORTS
195
the victims or that they had prearranged between
themselves to pick up any sort of conversation or
quarrel with Lakhan Singh or Bhagwan Singh and
then to shoot at them. All the incidents happened
by accident. If Lakhan Singh and Bhagwan Singh
had not questioned Banwari, probably, nothing
would ·have happened. They questioned him and
for some reason Banwari fired at them. He might
have considered that their questions to him a.s to
. where he was going was an indirect reference to his
going armed and a sort of reflection on his possessing a gun.
The Courts lbeow imputed common intention
to Ram Charan on account of his not disassociating
himself from the activities of Banwari.
The question of dis-association did not arise when he had not
associated himself in the first instance with Banwari's activities.
He was proba blv much bewildered at the conduct of Banwari in shooting Lakhlln
Singh down as Lakhan Singh or any one else would
have been. After the shooting of Lakhan Singh
both Banwari and Ram Charan· are said to have
just proceeded towards t.he south. It was after
Bhagwan Singh had been shot dead that they took
to their heels.
Ram Charan could not have anticipated a second incident with Bhagwan Singh. There
was no reason for their pre-arranging the shooting
of Bhagwan Singh. Ram Cha.ran's running away
simultaneously with the running away of Banwari
after the shooting of Bhagwan Singh could have
been motivated by the instinct of saving himself
from the villagers who could have thought that he
was a party to the various incidents.
Wben Courts
could consider his presence in that light, the villagers
could have thought on those lines much more easily.
His running away, therefore, is uo indication of his
guilty conscience. [twas the result of his anticipating popular reaction. In the circumstances, his
possessing an axe at the time was nut for committing any violence against L:.khan Singh or the
1962
Banwari
v.
State of
Uttar Prad1sh
Raghubar Dau al J.
1962
Bomvari
v.
Stott of
Ultar p,adt•h
ll1tlrubar Dayal J.
Ft1-1Ili.
196 SUPREJ\IE COURT REPORTS [1962] SUPP.
other viotims.
He had it with him E·ithrr as a matter of cour~c or for doing the work hP mil!ht have
bren doing that day. We are therrfore of the opinion
that ltam Charnn had no common intention with
Banwari in his acts towards the \'arious victims of
tho incident anrl t.hat he has been wrongly convicted.
"\Ve therefore dismiss the appciil of Ranwari
and allow the appeal of Ram Cha.ran and acquit
the latter of the offonccs he has been convict.id of.
AppP.al pa.rtly allowed.
THE FINE KNITTING CO., LTD.
v.
THE IN"DCSTIUAL COURT, BOJ\IBAY
AND OTHEHS
(P. B. GA.H::S-DRAGADKAR, A. K. SARKAR :ind
K. N. WA:S-CHOO, JJ.)
lncfu.<;lrial
dispu.tt -lndu,,trial conrern·-8plit-Linq up of
a. going concern-Hosiery Gonzpany-lnsfa!lalion n.f spinnin!f
1nflchinf',ry -Rrc<;1j11ition of Com[>finy as
ho-~ier11
und.~rf1tkinr1
and t.ipinning undlcrtak:1.q
1v~
sr.para.1p -Vrzlidity -Rrnnba.1J
[ntb1stri!tl R•Jation-• Act, 1.94r, (Rom. 1 I of /!147), s. 11.
The. appellant Comparv was incorporated in 1908 and
its principal activity then ""as to manufac.turc hosiery.
In
1924 \\'hen
tilt' appellant shifted its factor to Ahmcdtbarl
it
installr:d
spinnin~ n1achinr:ry \\·ich
a view to ensure
suitable and e\·r.n s111)ply of yarn for its hosiery manufacture.
()riginally, a notifiratior. had hccn iss~t"d on ~fay 30, l~l39,
under the Bo1nl>ay Industrial l)i.-p11tc Act, l 93n, ,.,·hereby
hosierv concerns , .. ·rrc includccl in t.hc dcfination of 11Cotton
Tr.xtil~ Tndusrry•·, h11t suhsrqucntly on July 17, t 9:t.1, another
notification vvas issued as a result of which the llo~irry manu·
facture \\'as excluded from thP.
(~otton 'fcxtile lnd 11stry and
it \'•:ls covt"red by a separate notificatinn.
For the purposrs
of th~ Ro1n\Jav Industrial R~lations Act, 1916,
th~ appellant
concc-rn ,.,•as rccognisr<l as an undertaking of th~ hosiery
industry by the Rcgiitrar nncler s. 11 of that Act.
Subsequently as a re-;11lt of certain proceedings taken liy the Textile Lobour Association of Ahmedabad, the Registni.r decided