1. These two connected rules have been tried together. InRule 1226, we are concerned with three accused persons Mon Mohan Roy, Deno NathPal and Narayan Chandra Dutt.

2. Mon Mohan was a loader in the service of the East IndianRailway at Kristopur. Deno Nath is a merchant carrying on business in molassesat Kushtia. Narayan is Deno Naths gomasta.

3. One of Mon Mohans duties as a loader was to enter uponwhat are called consignment notes the true weight of goods despatched, and thecase against the accused was that some time between July 1911 and March 1913,they had entered into a conspiracy to defraud the Railway in respect of thefreight payable on such goods. It was further alleged against them that on the6th March 1913, the accused Mon Mohan accepted from Deno Nath through Narayan asum of Rs. 8 as an illegal gratification, and in consideration of that sum andin pursuance of the aforesaid conspiracy, understated on a consignment note theweight of a certain consignment by some 163 maunds and so joined with his twoco-accused in defrauding the Railway of the sum of Rs. 34 being the freightpayable on the difference between the true weight and the weight stated.

4. The charges framed against Mon Mohan were charges ofoffences under secs. 120B, 420 and 161 of the Indian Penal Code. The chargesagainst the two co-accused were of offences under secs. 120B, 420 and 161 readin each case with sec. 109. Conviction followed on all the charges.

5. In Rule 1227 we are concerned with the same Mon Mohan andthe same Deno Nath and with a third person named Janoki who is the son of DenoNath. In this case the charges framed were in respect of the same or a similarconspiracy and of three similar acts of fraud committed in pursuance of theconspiracy on or about the 1st November, the 7th November 1912 and the 16th dayof January 1913. The sum involved on each of these three occasions was a sum ofRs. 17-4. As in the first case, there were also charges in respect of twoalleged gratifications said to have been paid to Mon Mohan -- one sum on orabout the first and a second sum on or about the 6th November 1912. In thiscase also on all the charges conviction followed.

6. On appeal the learned Sessions Judge of Howrah held ineach case that the several offences charged under secs. 120B, 420 and 161 andunder secs. 420 and 161 real with sec. 109 could not be said to have beencommitted in the course of one and the same transaction and that the trialswere therefore vitiated by misjoinder. He therefore set aside the convictionand sentences in each cause leaving it open to the Crown to take such furtherproceedings as it might be advised.

7. Against these orders of the learned Sessions Judge, theCrown has moved this Court, and having had the advantage of hearing learnedcounsel or pleaders on both sides we are satisfied that in each case thelearned Sessions Judge has fallen into error. In deciding whether offences areso connected as to form one and the same transaction the determining factor isnot so much proximity in time as continuity and community of purpose andobject. In the present case that test, we are of opinion, is clearly satisfied.It has been suggested that this view may lead to the joinder of an embarrassingmultiplicity of charges, but we may observe that sec. 239 is merely an enablingsection and does not in any way trammel the discretion of the Court.

8. As to a further question whether sec. 239 is controlledby sec. 234 of the Code, we need not in this case, and do not, express anyopinion. For these reasons we set aside the orders of the Sessions Judge nowunder consideration and in each case direct that the appeals be re-heard anddetermined on the merits.

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Supdt. and Remembrancer of Legal Affairs, Bengal vs. MonMohan Roy and Ors. (18.09.1914 - CALHC)