Meredith, J.The four petitioners have been convicted u/s 506, I.P.C., and have been sentenced to undergo rigorous imprisonment for one year each. Their appeal has been dismissed by the learned Sessions Judge. The facts of the case are that the motor car of a certain Magistrate was damaged by the elephant of a rich zamindar, Janki Raman Misser, and a case was thereafter run against the zamindar, as master of the elephant, u/s 289, I.P.C. This case was eventually withdrawn after a transfer to another district, an apology having been made for the incident.

2. On 10th July 1939, while the case was pending ten witnesses came to the Court at Laheriasarai to be examined, and the same day a joint petition was filed by all ten before the Sub-Divisional Officer in the following terms:

The facts for submission are that we are witnesses in the case Emperor v. Janki Raman Misser. One Nathu Chaudhury, servant of Janki Raman Misser was saying in presence of Sheikh Tabarak of village Rajkha, Jumrati of village Anar, Biso Mistry, Badri Mistry, Khubi Sahu of village Rajkha, Gulzar of village Anar and Dahaur Chaukidar of village Rajkha and Nathu Mallah, that I will also be killed in the same way as Mahendra Singh, clerk of Anar Factory, was killed and that he was the person who got him killed. Rijhan Misser, Rajnarain Singh and Satruhan Singh and others, his servants, are always threatening us and asking us not to depose in the case. It is therefore prayed before your honour that investigation be made so that I may not be put in danger of my life. The names of witnesses and their thumb marks are on the reverse.

This petition was sent to the police with instructions to treat it as a first information. It will be observed that in the petition the only specific charge made is of criminal intimidation on 24th July 1939, against one person, Nathu Chaudhury, petitioner 1.

3. The police, however, eventually submitted charge sheet against all four petitioners: against Nathu Chaudhury and Rijhan Misser for criminal intimidation at Laheriasarai on the 24th and against the other two petitioners Rajnarain Singh and Satruhan Singh, for a different incident, namely criminal intimidation of the witnesses said to have taken place on 10th July, at Anar Kothi, the village of the zamindar. The charge framed, upon which the petitioners were convicted was as follows:

That you Rajnarain Singh and Satruhan Singh on or about 10th July 1939 and you Nathu Chaudhury and Rijhan Misser on 24th July 1939, at Anar Kothi and Laheriasarai, respectively, committed criminal intimidation by threatening Madhusudan Lal Das, Sheikh Tabarak and others with injury to their person with intent to cause alarm to the said Madhusudan Lal Das and others and thereby committed an offence punishable u/s 506, I.P.C.

4. The evidence led in Court, which consisted only of the testimony of five of the persons who had joined in the petition, and of the investigating Sub-Inspector, was to the effect that on 10th July the witnesses had met together to come to Court on foot at a place near the elephants stable of Janki Raman Misser, Rajnarain Singh and Satruhan Singh (petitioners 3 and 4), servants of Janki Raman Misser, tried to, persuade the witnesses not to depose for the Crown, and finally, threatened them that they would be killed as a certain Mahender Prasad had been killed. On 10th July the case was adjourned without hearing.

5. The next date fixed was 24th July and the evidence was that on that date the other two petitioners, Nathu Chaudhury and Rijhan, who are also servants of Janki Raman Misser, met the witnesses in the Court compound and again asked them not to depose. Finally, they threatened the witnesses that they would be murdered like Mahender Prasad. In the afternoon, when the witnesses had been examined, they again met Rijhan and Nathu in the Court compound, who told them that they should now prepare themselves to die as Mahender Prasad had died. On this the witnesses filed their joint petition, to which I have already referred.

6. The principal point taken for the petitioners is that the charge and the joint trial of all the petitioners upon that charge were illegal, as the occurrences were quite separate and were not part of the same transaction. This point was taken in the lower Appellate Court but the learned Judge was of opinion that the case was covered by Section 239(d), Criminal P.C., which provides that persons accused of different offences committed in the course of the same transaction may be charged and tried together. In my opinion, the case was not one which falls within the terms of Section 239(d) and the joint trial of the petitioners was therefore illegal. There are many rulings upon the question of the exact significance of Section 239(d), but it is necessary to refer only to one the Privy Council case AIR 1938 130 (Privy Council) . It is of course well-settled that the infringement of the provisions of Section 239(d) would, if made out, constitute an illegality as distinguished from an irregularity, so that the conviction would require to be quashed, and that Section 537 can be of no avail to remedy the defect. That has been reiterated in the ruling which I have just referred to. And we get it also from this ruling of the Privy Council, that the question of joinder and misjoinder depends on the form of the accusation made rather than on the facts actually proved at the trial. This being so, the nature of the charge is really the crucial point.

7. The learned Judge in the Appellate Court below has observed, and rightly observed, that the phrase "same transaction," used in Section 239(d), suggests in particular continuity of action and purpose. But can it be said, having regard to the terms of the charge which I have quoted, that the accusation in the present case makes out any continuity of action and purpose Can it be said that the petitioners have all been charged in this charge with offences of criminal intimidation committed as part of the same transaction In my view it certainly cannot. There is nothing at all in the charge from which it can be said that the alleged incidents of 10th July and of 24th July form part of the same transaction. The learned Judge has commented on the fact that all the petitioners are servants of the same master. That may be; but the fact that they are all servants of the same master and so connected with the same person, does not necessarily involve connexion with each other for the purposes of the offences charged. It seems to me perfectly possible that the petitioners master, who is a big zamindar, might be above conduct of this sort, while his underlings through excess of zeal on his behalf might independently resort to action of this kind at different places on different occasions. Such acts would certainly not be part of the same transaction.

8. It has been pointed out that there is no evidence at all in the case of any conspiracy between the petitioners for the purpose of intimidation, nor was there any charge of conspiracy. It has been urged for the Crown that in matters like this each case must depend upon its own facts, and whether offences are or are not part of the same transaction is more a question of fact than of law. We must however, as I have said, depend more on the nature of the accusation than on the facts proved; and the accusation in the present case does not involve anything from which it could be said that the accused are charged with different offences as forming part of the same transaction. No doubt it may be possible to infer a common purpose in the varions acts alleged: but common purpose would not be enough to make offences part of the same transaction if the offenders act independently. The petitioners in the present case might all be under the orders of the same master, but that in itself would not justify the inference that they were in conspiracy with each other.

9. In my view this is a clear case of misjoinder and the joint trial of petitioners 1 and 2 with petitioners 3 and 4 was illegal and involved moreover a clear possibility of prejudice. This being so, the convictions and sentences must be set aside. There remains the question whether a re-trial should be ordered. Our attention has been: drawn to the harassment which the petitioners have undergone, to the long period that has elapsed, to the fact that the sole evidence is that of five of the complainants, even though the offence is said to have taken place actually in the Court compound. These are circumstances to which we must attach great weight.

10. But we must also attach weight to the fact that the petitioner Nathuni at least was charged then and there without any delay and that both the Courts below were very favourably impressed by the evidence of the witnesses. The learned Sessions Judge has observed:

The trying Magistrate was obviously impressed by the prosecution witnesses and on reading through their deposition I am also impressed.

Later he says: "The prosecution evidence in the present case carries conviction." He also observes that after the occurrence Nathu absconded for 12 days and the other petitioners for 26 days. I have already noticed the fact that the petition of complaint makes a specific charge only for the incident of 24th July and only against the petitioner Nathu Chaudhury. This being so, I am of opinion that a re-trial of the other three petitioners against whom nothing specific was alleged in the complaint, is not necessary or desirable; but in the case of the petitioner Nathu Chaudhury there was an accusation then and there, and there was the evidence of five witnesses upon which I do not desire to express any personal opinion, but with which, as I have said, the Courts below were much impressed.

This being so, unless the Crown does not consider it necessary to proceed against him, Nathu Chaudhury should be re-tried for the alleged offence of 24th July. In the result therefore I would set aside the convictions and sentences and direct that the petitioners, Rijhan Misser, Rajnarain Singh and Satruhan Singh be acquitted and discharged from their bail and that the petitioner Nathu Chaudhury be re-tried unless the executive authorities do not desire to proceed against him.

Varma, J.

12. I agree. I should like to say a few words on the question of misjoinder of charges and misjoinder of trial. The lower Appellate Court has come to the conclusion that the offences of 10th July 1939 and 24th July 1939 were committed in the course of the same transaction although the time and the place of occurrence were different. An argument was advanced in the Court below that the accused may have acted independently in an excess of zeal for the cause of their master. But the learned Judge says:

In my opinion the circumstances definitely indicate otherwise. The witnesses were approached on two successive dates of hearing, and twice on the second day, by the servants on the same man in respect of the same case. These servants had no personal interest in the verdict in that case. The conclusion is obvious that either their master or some connexion of his was behind them in an attempt to intimidate the witnesses. The difference of dates and of place is immaterial.

13. When the learned Judge says that the conclusion was obvious that either their master or some connexion of his was behind them in an attempt to intimidate the witnesses, he may be perfectly right. Each of these accused may have been influenced by the master or some person connected with the master; but before a joint trial can be held to be permissible or justifiable it must be established that each one of the accused was so connected with the other accused that the act done by one of them may be said to have been done con-jointly with the others. It is this aspect of the law which has been dealt with in the decision of the Privy Council in AIR 1938 130 (Privy Council) . Evidently the learned Judge was thinking that perhaps a case of conspiracy was made out; but as there was no charge of conspiracy in this case the joint trial must be held to be illegal.