Walmsley, J.@mdashThe six petitioners have been convicted under S. 500, I.P.C. and sentenced to pay a fine of one hundred rupees each.
2. Briefly stated the facts are that the petitioners were ordered to show cause why they should not be prosecuted under S. 188, I.P.C. for disobeying an order passed under S. 144, Cr.P.C. They came to Court, and Nos. 1 to 4 filed one petition Nos. 5 and 6 another petition, and in both these petitions objectionable remarks were made about the character of the complainant.
3. The conviction is in regard to these offensive remarks. Its correctness is assailed on two grounds, the first is that no offence was committed and the second is, that, the offenders could not be tried together.
4. As to the first ground, it is conceded that the expressions are defamatory, but it is urged that they come within the ninth exception to S. 499, I.P.C. The recent decision of a Full Bench of this Court renders it impossible for petitioners to claim absolute privilege. They must show that the imputations were made in good faith and for their own protection. This is a matter of evidence, and I agree with the learned Judge in the Court below that the petitioners have utterly failed to establish either point.
5. It is the second ground that has been pressed most strenuously. It will be convenient to state the facts once more. Four of the petitioners filed one petition, two petitioners signed another; the wording of the petitions is different but the substance of the allegations against the complainants is the same; the petitions are signed by the same pleader and, they were presented on the same day, in the same case, and apparently, at the same time.
6. Now each petitioner committed an offence at the moment when he authorized the pleader to present the petition and under S. 233, Cr. P. C. there should have been a separate charge against each petitioner for his separate offence in a separate trial unless it can be held that the circumstances bring into play the provisions of Ss. 234, 235, 235 or 239. The first three of these sections have no application. The last, S. 239, is the section which provides for more persons than one being tried jointly, and it runs
When more persons than one are accused of the same offence or different offences committed in the same transaction they may be charged and tried, together or separately as the Court thinks fit.
7. The question therefore is whether the petitioners committed offences in the same transaction. The meaning of these last four words has been discussed in many cases, and our attention has been drawn to numerous decisions. One of the latest pronouncements is to be found in the case of Amrita Lal Hazra v. Emperor (1) where the learned Judges said:
It is not possible to frame a comprehensive formula of universal application to determine whether two or more acts constitute the same transaction: but circumstances which must bear on the determination of the question in an individual case may easily be indicated: they are proximity of time, unity or proximity of place, continuity of action and community of purpose or decision.
8. It appears to me that this sentence supplies a good working test of what should not be regarded as the same transaction. And if we apply the test to the circumstances of the present case, we find that three of the features mentioned are present. There was proximity of time as I have already shown: there was also unity of place, and I think it is fair to infer community of purpose from the facts already mentioned. The one feature referred to in the quotation which is wanting is continuity of action, but the explanation is that the nature of the offence precludes the possibility of continuity.
9. In my opinion the petitioners have failed to make out that the joint trial was bad in law, and I think therefore that the Rule should be discharged.
Suhrawardy, J.
10. I agree.
