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Present: Pereira J.
THE KING r. PODISINNO et al.
112 and 113—D. C. (Crim.) Batnapura, lfi29.
Bias—District Judge also head of police—Police acting in the case onthe instruction of the District Judge—Misjoinder of charges—Illegality.
The police acted in this case on the instructions' of the DistrictJudge who was also the head of the police in the Province.
Held, that the District Judge should not have tried the case.
The two accused in this case were charged in one indictmentwith theft of seven cases of gelignite in the first count; the firstaccused only Was charged in the second count with having onAugust IB dishonestly retained 113 cartridges of gelignite knowingthat they were stolen ; the second accused only was charged Withhaving dishonestly retained 27 cartridges on August 15.
Semble, that the joinder of the second and third counts in theindictment is: bad.
The joinder of two separate charges against two separateindividuals in one indictment is illegal.
r |^HE facts are fully set out in the judgment.
A. Jayewardene (with him Morgan and Tambyah), for theaccused, appellants.
Bawa, jK.C., for the Crown.
Cut. adv. vult.
November 11, 1912. Pereira J.—
In this case the two accused are charged in the first count of theindictment with having, between July 28 and 27, 1912, committedtheft of seven cases of gelignite from a building used for the custodyof property. In the second count of the indictment the first accusedonly is charged with having on August 13, 1912, dishonestlyretained 113 cartridges of gelignite knowing that they were stolenproperty; and in the third count of the indictment the secondaccused only is charged with having, on August 15,1912, dishonestlyretained 27 cartridges of gelignite knowing that they were stolenproperty. The District Judge has acquitted both the accused onthe first count, and convicted the first accused on the second count,and the third accused on the third count of the indictment. Twoobjections were taken by the appellants* counsel.. The first is that,the second and third counts could not be put together in one indict-ment, and he cited the case of Emperor v. Jethalal1 in support of it.
i 7 B. L. R. 627.
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The leading authority on the question of misjoinder of charges is thedecision of the Privy Council in the case of Subramanian Ayer v.King Emperor,1 in which it was held that a misjoinder of chargesin contravention of the provisions of the sections of the Indian Codeof Criminal Procedure, corresponding to section 178 and the sectionsimmediately following it of our Criminal Procedure Code, was not amere irregularity, but an illegality, which could not be cured by theapplication of the section of the Indian Code corresponding to section425 of ours. The case cited by the appellants' counsel is similar tothe present, in that the misjoinder was of two separate chargesagainst two separate individuals, and in that case a' majority of theCourt, following the decision in Subramanian Ayer v. King Emperor,1held that the indictment was bad.. In the present case I have nodoubt that it was in view of the first count of the indictment that thesecond and third charges were also inserted in it. It was evidentlysupposed that if the gelignite removed from the store at Medapolabetween February 23 and 27, 1912, was stolen by the two accused,then the offences mentioned in the second and third counts wouldbe ramifications of the same transaction, and that the insertion ofthese two counts in the same indictment would be justified bysection 184 of the Criminal Procedure Code, which enacted thatwhen more persons than one were accused of different offencescommitted in the same transaction, they might be charged andtried together or separately as the Court thought fit; but it willbe seen that even such a view is repelled by the decision in the caseof Abdul Majid v. King Emperor.2 Considering my decision onthe other objection taken by the appellants’ counsel, I need say nomore on this objection than that I hope that if, in view of theDistrict Judge’s finding on the first count of the indictment, thatcount be withdrawn at the new trial, the propriety of trying thetwo accused on the second and third charges on one indictmentwill be considered by those concerned. The other objectiontaken by the appellants’ counsel is by far the more serious ofthe two.
After the indictment was read to the accused, counsel appearingfor them objected to the trial of the case by the then officiatingDistrict Judge, because he was also the head of the police of theProvince within which the offences were alleged to have beencommitted, and the police had acted on his instructions. I shallcite verbatim the record of the incident made by the District Judge.It is as follows: “ Mr. Morgan objects, on behalf of the accused, tothe case being tried by me, as I am head of the police, and thepolice acted on my instruction in this case.”
Order—“ I am afraid I cannot uphold that objection. It mightbe taken against all eases which I try.”
3 Mad. 61; 5 Cal. W. N. 866.
(1901) I. L. R. 28 A. 257; I. L. R.
Cal. L. R. Rep., III., 412.
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If this is all that the District Judge had to say on the objection,and especially with reference to the grounds put forward in supportof the objection, it is clear that the objection must prevail. From,about the year 1890, if not earlier, this Court has in a aeries of casesanimadverted upon the trial by revenue officers and police officersof cases in which they may be supposed to have an officialinterest. In Bode v. Bawa 1 a Superintendent of Police who hadgiven orders that all persons committing street nuisances shouldbe arrested and prosecuted sat as Police Magistrate and convictedthe accused who had been brought up for such an offence, andBonser C.J., in the course of his judgment, by which he quashedthe conviction, observed “ that justice should be believed by thepublic to be unbiassed is almost as important as that it shouldbe in fact unbiassed," and, citing from Regina v. Huggins * he saidthat “ it is far safer to enlarge the area of this class of objectionto the qualification of justices than to restrict it." In Danielv. Careem 3 a Superintendent of Police, acting as Police Magistrate,tried the case on the complaint of one of his subordinateofficers. It did not appear that he had said or done anythingwith reference to the prosecution, but the conviction wasquashed on the ground of reasonable apprehension of bias in theMagistrate. In Peris v. Simanis* on information given to aMagistrate by a proctor that one of his witnesses had been interferedwith by the accused* the Magistrate directed a Sergeant-Major ofPolice to charge the accused under Ordinance No. 11 of 1894, andit was held that it was not competent to the Police Magistrateto try the charge so instituted. In James v. Latiff,3 however,Bonser C.J. held that a Magistrate whose primary duty was not tosuperintend the police was not disqualified to hear a case of hurtinstituted by a police constable, but in the course of his judgmenthe observed “ the case was a trifling one," and he thought thatthe Magistrate, as a police officer, was not so identified with themembers of hie force as to give rise to a reasonable apprehensionof bias. In the present case, however, not only was the chargea most serious one, but the police “ acted in the case on theinstructions of the District Judge," and I am convinced that, in thesecircumstances, the suspicion of bias in the Judge would be almostirresistible to the mind of the ordinary litigant of this country.As observed by Lord Justice Fry in a case not dissimilar to this(see Leeson v. General Council of Medical Registration 6), “ it is amatter of public policy that, go far as is possible, judicial proceedingsshall not only be free from actual bias or prejudice of the Judges,but that they Bhall be free from the suspicion of bias or prejudice,"and as held by Mr. Justice Mitra in the case of Ghose v. Rajjab AliJ .
C1896) 1 N. L. R. 373.* (1396) 2 N. L. R. 62.
X2896) 1 Q. B. 365.* (1901) 6 AT. L. R. 312.
* (1899) 1 Tamb. Rep. 60.• ((1889) 43 C. JX 366-390.
7 Cal* L. J. R.t III., 647.
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in judging of this bias or prejudice, " the appreciation of a mindproperly constituted, that is to say, of a well-balanced and impartialmind capable of tracing the true springs of human actions, anddiscovering their harmony, however apparently incongruous theactions may be, is not the standard, but the feelings of the ordinaryman accused of a criminal offence.
For these reasons I quash the conviction and the proceedingssince the arraignment of the accused before the District Court, anddirect that proceedings be had de novo before another Judge.
THE KING v. PODISINNO et al