Judgement Consolidated Appeals (No. 65 of 1937), by special leave, from a judgment of the High Court (July 10, 1936) which modified the convictions but upheld the sentences passed upon the appellants by the Chief Presidency Magistrate of Calcutta (June 6, 1935). The appellants, Babulal Choukhani and Sailendra Nath Mukherjee, were charged, together with a number of other persons, with being parties to a criminal conspiracy to commit theft of electric energy by a system involving tampering with the consumers meters. Choukhani was also charged with having committed theft of electric energy, and Mukherjee with having abetted him in the commission of that offence. The facts, the form of the charges, and the relevant statutory provisions appear from the judgment of the Judicial Committee. The Chief Presidency Magistrate convicted Choukhani of conspiracy, and of theft of electricity under s. 39 of the Indian Electricity Act, 1910, and sentenced him to one years rigorous imprisonment and a fine of Rs.1000, but passed no separate sentence on the charge of conspiracy. He convicted Mukherjee of conspiracy and of abetment of the theft by Choukhani, and sentenced him to two years rigorous imprisonment, but passed no separate sentence on the charge of abetment. On appeal by the appellants the High Court (Derbyshire C. J. and Costello J.) held that the charge of conspiracy failed, but that that did not make the trial illegal, 7 the test to be "applied for judging of the validity of a trial which purports "to have taken place under the provisions of s. 239 of the "Criminal Procedure Code" being the accusation made and not the result of the trial; and, dealing with the exercise by the magistrate of his discretion under s. 239 of the Code, they said " There is, in our opinion, no reason whatever for supposing that the charge under s. 120B of the Indian Penal Code was made for any evil purpose. We must take it.... We must take it.... that the learned magistrate, acting in his judicial discretion, was of opinion that prima facie the evidence given in chief by the prosecution witnesses had come to a stage in the proceedings warranting a finding of the conspiracy charge....We must therefore hold that "having regard to all the facts before the magistrate at the "time when he was framing the charges against the accused "as directed by s. 254 of the Code of Criminal Procedure, he "was acting judicially and properly exercising the discretion "given him by s. 239." Having held that the trial on the charges as framed was legal, they affirmed the convictions in respect of theft and abetment of theft, and upheld the sentences passed on each of the appellants. By s. 239 (d) of the Code of Criminal Procedure persons accused of different offences committed in the course of the same transaction may be charged and tried together, and the questions in this appeal were whether the trial of the appellants was void for misjoinder of charges and persons, and whether the correctness of the joinder which depends on the sameness of the transaction is to be determined by looking at the accusation or by looking at the result of the trial. 1938. Jan. 24, 25, 27, 28. Garden Noad and J. M. Pringle for the appellant Choukhani. The main ground of appeal raises the question—of great public importance in the administration of criminal law in India—whether the trial was not void for misjoinder of charges and persons. The important section of the Code of Criminal Procedure is s. 239 (d) the offences must be committed in the course of the same transaction; there has been a confusion between the words same "transaction" and conspiracy. [Reference was also made to ss. 233, 234 and 235 of the Criminal Procedure Code.] Sect. 120 (A) and (B) of the Indian Penal Code is a comparatively recent section dealing with criminal conspiracy, and the important words are "When two or more persons agree to do, or cause to be done,—(1) an illegal act." There must be an agreement, and it must be an illegal act. It is submitted that it does not extend to whole classes of acts, or to acts of a similar kind. It is submitted that it does not extend to whole classes of acts, or to acts of a similar kind. There must be an agreement to do a particular act, and there must usually be a community of interest in the commission of the offence. N. A. Subramania Iyer v. King-Emperor (i) decided that any contravention of the mandatory sections with regard to joinder of charges—s. 233 onwards of the Criminal Procedure Code—is fatal to the validity of the trial, and that any conviction obtained in such circumstances must be set aside. In s.40 of the Indian Electricity Act, IX of 1910, the words maliciously causes energy to be wasted or diverted "mean abstracting without consumption or user. It is contended that the offence in question is not within s. 39 of the Act of 1910, but within s. 44 (c), that of fraudulently altering the index of the meter, and is punishable by a fine only under the section. The appellant is charged with theft of electricity belonging to the corporation, but the property in it would pass at the moment of supply, and ceased to be the property of the corporation; it was supplied on credit. If it was anything it was a fraud a fraudulent alteration of the record of consumption. It is admitted that there is evidence which, if accepted by the magistrate, as it has been, would be evidence of theft against Choukhani. But the question is whether he had a valid trial. In India, if a mans conviction is set aside on the ground of some legal defect, there is no finality about that, because he is liable to be retried. The High Court can (a) order that the accused be retried; (b) order that he shall not be retried; and (c) leave it to the prosecuting authority to have a retrial if so advised. That makes a difference to the consideration of questions of this kind. Illegality, as opposed to irregularity, cannot be cured N. A. Subramania Iyer v. King-Emperor (( 1901) L. R. 28 I. A. 257.), which, it is submitted, governs the general principles applicable. That makes a difference to the consideration of questions of this kind. Illegality, as opposed to irregularity, cannot be cured N. A. Subramania Iyer v. King-Emperor (( 1901) L. R. 28 I. A. 257.), which, it is submitted, governs the general principles applicable. [The history of conspiracy legislation in India was then traced.] It is bad enough to have a number of offences put together and evidence given on them, but it is a potentially terrible weapon of injustice and mistrial if a mere allegation of conspiracy, without anything really to support it at all—an allegation made by the prosecution, ot by the Court—is going to settle the form of the trial. It is submitted that the offences have to be in fact committed in the course of the same transaction; not merely an allegation that they are. Choukhani has not only been charged in respect of his own cinema, but also in respect of another cinema with which he has nothing to do. [SIR GEORGE RANKIN It may be that the same result could have been reached on three or four trials of smaller conspiracies?] Certainly. [On the question of applying to the High Court in revision to deal with the question of the misjoinder, reference was made to C. S. Joseph and Others v. The Emperor (( 1936) 41 Cal. W. N. 251.) and to ss.423, 435 and 439 of the Criminal Procedure Code.] The validity of the misjoinder falls to be determined by the findings of fact whether the matters did in fact form one transaction or not. There is no assertion in the charges that the transaction is one. Even if the question whether the offences were committed in the course of the same transaction should be judged at the beginning of the proceedings, there must be genuine actual facts upon which the magistrate could arrive at that finding. A charge framed when there has been inattention or ignorance of law does not validate the trial. There is authority to show that a conspiracy is not necessarily a transaction, and may contain more than one transaction. There is a finding in this case by the High Court that the transactions were more than one. In all the cases cited by the High Court in their judgment there is no finding to that effect at all; in those cases there was always one transaction. There is a finding in this case by the High Court that the transactions were more than one. In all the cases cited by the High Court in their judgment there is no finding to that effect at all; in those cases there was always one transaction. There are some authorities against the appellant in Emperor v. Datto Hanmant Shahapurkar (( 1905) I. L. R. 30 B. 49, 55) the only point was whether the offences were committed in the course of the same transaction within s. 239, and that case proceeded purely and solely on the facts found at the beginning of the trial. In Abdul Salim v. Emperor (( 1921) I. L. R. 49 C. 573, 590, 594, 596) the abatement was part of the same transaction—a transaction has nothing to do with persons, it is a bundle of facts. In both the immediately preceding cases it was held that the legality of a joint trial is decided by the accusation, but the conviction is decided on the evidence. It is admitted that in each of those cases words are used which indicate that it is the accusation which counts and not the result of the trial. But in none of that class of case is there any critical examination either of s. 239 of the Criminal Procedure Code or of any of the sections in regard to the mode of trial. There is not a finding in any one of them that the transaction was in fact more than one, and in some of the cases there was a distinct finding that the transaction was in fact one. Finally, there does not appear to be any explanation as to the meaning of "accusation.” There is no suggestion in Amrita Lal Hazra v. Emperor (( 1915) I. L. R. 42 C. 957, 981.) that it is the charge, or the accusation, or anything else that counts except the actual facts. The wording of s. 239 or anything of that kind was not dealt with in Satya Narain Mohata v. Emperor (( 1927) I. L. R. 55 C. 858.), and there was one transaction. Also in Abdullah and Others v. King-Emperor (A. I. R. ( 1924) A. 233.) there is no suggestion that the charges did not relate to one transaction, and the judge in that case said (Ibid. Also in Abdullah and Others v. King-Emperor (A. I. R. ( 1924) A. 233.) there is no suggestion that the charges did not relate to one transaction, and the judge in that case said (Ibid. 236.) " The convictions which "he has recorded are warranted by the conclusions at which "he arrived on the evidence.” In Mallayya v. King-Emperor (( 1924) I. L. R. 49 M. 74.) the only question discussed was whether the events in the same rebellion were part of the same transaction or not, and Krishnan J. said (Ibid. 93-94) " The question of the legality of a "joint trial, in my opinion, really depends upon the accusation made and not upon the result of the trial.... The only question we have really to decide in the case is whether the various incidents mentioned in the charge were or were not parts of the same transaction....The question whether they form parts of the same transaction....has to be judged....on the facts of the case." V. M. Abdul Rahman and Another v. King-Emperor (( 1924) I. L. R. 3 R. 95.) is of no assistance in the present case. In Kali Kumar Dass v. Nawabali Dhali (( 1929) 30 Cr. L. J. 619; A. I. R. ( 1929) C. 160.) the Court proceeded on the plain footing that the offences found were committed in the course of the same transaction. Gopal Raghunath v. Emperor (( 1928) I. L. R. 53 B. 344) would appear to be the strongest case against the appellant. [Reference was also made to Emperor v. Mohammad Yakub (( 1932) 33 Cr. L. J. 373.); U. Satyanarayana v. Emperor (( 1933) Mad. W. N. 528.); Ramdas v. Emperor (( 1934) 35 Cr. L. J. 1349.); and Superintendent & Remembrancer of Legal Affairs, Bengal v. Raghulal Brahman.(( 1935) 39 Cal. W. N. 741.)] The foregoing are the cases one way, but there is, as opposed to them, an enormous volume of cases which have not proceeded on the same footing, and which should have done so if the principle applied in the foregoing cases was right. There is a real conflict. W. N. 741.)] The foregoing are the cases one way, but there is, as opposed to them, an enormous volume of cases which have not proceeded on the same footing, and which should have done so if the principle applied in the foregoing cases was right. There is a real conflict. In the present case neither on the allegations made, nor in the charge, nor in the facts stated was there anything which could make community of purpose Choragudi Venkatadri v. Emperor.(( 1910) I. L. R. 33 M. 502.) In the charges the appellant is not accused of offences committed in the same transaction or in pursuance of the same conspiracy Gobind Koeri v. Emperor.(( 1902) I. L. R. 29 C. 385.) In Krishnaji Anant Dange v. Emperor (A. I. R. ( 1932) B. 277.) the allegation was that two offences were parts of the same transaction, and it was held that they were not the only test there was not what was the frame of the charge, but whether in fact the offences could be held as a result of the evidence to be one transaction at all. [Reference was also made to Tamkin Hiu Ah Chung v. Emperor.(A. I. R. ( 1934) B. 255.)] Similarly, in Shapurji Sorabji v. Emperor (( 1935) I. L. R. 60 B. 148, 153.) it was held that the test was whether they were or were not one transaction in fact. [Reference was made to Tamezkhan alias Tamejuddin v. Rajjabali Mir.(( 1927) 31 Cal. W. N. 337, 338, 339.)] There are numerous cases where offences committed by more than one person have been in fact tried together without saying that there was a conspiracy to commit them, admittedly on the footing that the transaction was one and the same. And the Court has not looked to the form of the charge, or the allegation, in deciding on the validity of the trial, but only at the offences to see whether in fact they formed part of one transaction Emperor v. Puttu Lal (( 1923) I. L. R. 46 A. 54.), and Mazaralli v. Emperor.(( 1933) I. L. R. 57 B. 400, 403, 407.) If the joinder can be justified by facts proved at the trial, it is submitted that misjoinder can also be so proved. There are one or two cases which seem to indicate that the High Court at Calcutta, after the decision now in question, have not followed the decision in circumstances in which they might well have done so Golok Behari Takal v. The Emperor.(( 1937) 42 Cal. W. N. 129,148.) If the Board think that the charge is the material thing, and what is contained in the charge is what is to supply the necessary connection between the offences charged, then it is submitted that the two charges against the appellant in this case have not the necessary connection. The transaction, under s. 239, must in fact and in truth prove to be one and the same, and on the evidence in this case the magistrate could not come to the conclusion that the transactions were one and the same. If the sameness of the transaction cannot be justified by the charges, it must be justified by the evidence which the magistrate had before him when he framed the charges, and on the face of it, it was apparent that the acts which had been lumped together were separate transactions. If this principle with regard to the material time being that of the accusation is to be read into ss. 233 to 239 of the Code of Criminal Procedure, they will have to be qualified to a great extent, and to be abrogated in part. If the decision of the High Court is held to be right, then it is for the magistrate to decide what charges are to be tried together, not for the law, and in that case there would be no need for S. 239. It is placing the magistrate above the law; it is making the mere averment to be the test. The appellant was prejudiced by the irregular form of the charge relating to theft, and the irregularity could not be cured. All that the theft charge came to was really a smaller conspiracy charge. The offence, if any, was not punishable under s. 39, because all that has been done is to falsify the record. Where there is any reasonable doubt about the construction of a penal statute the benefit should be given to the subject Tuck & Sons v. Priester.(( 1887) 19 Q. B. D. 629, 638.) [Reference was also made to Reg. The offence, if any, was not punishable under s. 39, because all that has been done is to falsify the record. Where there is any reasonable doubt about the construction of a penal statute the benefit should be given to the subject Tuck & Sons v. Priester.(( 1887) 19 Q. B. D. 629, 638.) [Reference was also made to Reg. v. David White.(( 1853) 1 Dearslyss Cr.C.203.)] J. M. Pringle for Mukherjee, appellant in the second appeal. With regard to the construction of the sections of the Code of Criminal Procedure which bear on the question of joinder of charges and of persons, the Board has to abstract the proper law from the words of the sections. Sects.233, 234 and 235 all deal with joinder of charges only; s. 239 (a) deals with joinder of persons; and s. 239 (b), (c) and (d) with both persons and charges. The validity of the joinder under s.235, sub-s.1, cannot be determined until the end of the trial—there is no escape from that. Sect. 239 (d) should read "persons accused of different offences which have been "committed by them in a series of acts so connected together as to form the same transaction may be charged and tried together." The words of s. 239 may mean one of two things (a) Persons accused of different offences alleged to have been committed in the course of what is alleged to be the same transaction and (b) persons accused of different offences in fact committed in the course of what is actually the same transaction. The words being ambiguous, enlightenment must be sought from other parts of the chapter, and the natural place to go to for help is to the complementary section dealing with the joinder of charges under the same circumstances where there is only one accused—namely, s. 235, sub-s.1, and, reading those two sections together, the second construction of s. 239 is that which should be adopted Tamezkhan alias Tamejuddin v. Rajjabali Mir (( 1927) 31 Cal. W. N. 337, 339.); Gobind Koeri v. Emperor.(( 1902) I. L. R. 29 C. 385, 386.) rd G. D. Roberts K.C., W. Wallach and J. Megaw for the respondent in each appeal. The general principles on which the Board acts on the hearing of criminal appeals are referred to in In re Abraham Mallory Dillet (( 1887) 12 App. W. N. 337, 339.); Gobind Koeri v. Emperor.(( 1902) I. L. R. 29 C. 385, 386.) rd G. D. Roberts K.C., W. Wallach and J. Megaw for the respondent in each appeal. The general principles on which the Board acts on the hearing of criminal appeals are referred to in In re Abraham Mallory Dillet (( 1887) 12 App. Cas.459, 467.), and Mohindar Singh v. The King-Emperor.(( 1932) L. R. 59 I. A. 233.) In N. A. Subramania Iyer v. King-Emperor (( 1901) L. R. 28 I. A. 257.) the point was that the Court had no jurisdiction because the Code of Criminal Procedure laid it down perfectly clearly that in the circumstances which applied to that case only three charges could be brought, and those charges must be confined to a period of twelve months. In the present case the charges, on the face of them, are perfectly legal and properly drawn, and establish an allegation that everything which is charged is done in the course of the same transaction. It is agreed that if it were otherwise it would not be a mere irregularity, but would be an illegality. It is quite clear that there was evidence on which the magistrate was justified in thinking that Choukhani was a party to a conspiracy—there was the evidence of at least four or five people, and there was also evidence that Mukherjee was a party to a conspiracy with about sixteen people. Then comes the question whether, the magistrate having made a mistake [the High Court having held that the conspiracy charges were not proved], the whole trial is vitiated. That is a question of construction, and depends on the meaning of the words in s. 239 (d), [Reference was made to the scheme of the Code of Criminal Procedure.] The first principle of the administration of criminal law in India is that an accused person is presumed to be innocent until the contrary is proved; that, it is submitted, would make it impossible to incorporate into the plain words of s, 239 the addition suggested by both the appellants—that joinder under s. 239 depended upon the eventual decision of fact, and that a person to be joined with another must not only be accused, but must be eventually convicted. That is a startling proposition, and if that is the right reading of these sections it would be impossible to administer the criminal law. The sections are clearly dealing with accusations made in accordance with the principles of any well ordered Code of Criminal law. To say that "persons accused and convicted; of the same offence may be charged and tried together" is ludicrous. It is clear from the authorities which have been cited that there is an unbroken line of judicial decision in India, at any rate for the last thirty years, that these sections of the Criminal Procedure Code mean what the ordinary man would think they ought to mean and do mean, and that there is no foundation at all for the appellants contentions. The appellants ask the Board to sweep away all those authorities and say that they are wrong. It is conceded that they establish the proposition, which is not disputed, that when charges on the face of them deal with different matters not forming part of the same transaction, then the Courts have held that there has been misjoinder. It is clear from the authorities that the power of joinder under s. 239 is not obligatory; it is an enabling power Supdt., and Remembrancer of Legal Affairs, Bengal v. Mon Mohan Roy.(( 1914) 19 Cal. W. N. 672.) Clearly s. 239 (d) has not been contravened in the present cases, and there is here no suspicion of anything outrageous or shocking to the principles of justice which would lead this Board to interfere. The appellant Choukhani argues that he should have been charged under s. 44 of the Indian Electricity Act, which deals with the fraudulent alteration of a meter—a minor offence and the punishment for which is less than that for an offence under s. 39. It is submitted that s. 44 is the machinery by which the offence under s. 39 is committed. Whether there was dishonest user was clearly a question of fact within the jurisdiction of the magistrate to decide. He decided that there was, and the High Court have upheld that finding. It may be that the theft charge is incorrectly framed because it charges theft over a long period, but that is a mere irregularity which, on the finding that the accused were not prejudiced, can be cured under ss. He decided that there was, and the High Court have upheld that finding. It may be that the theft charge is incorrectly framed because it charges theft over a long period, but that is a mere irregularity which, on the finding that the accused were not prejudiced, can be cured under ss. 225 and 537 of the Criminal Procedure Code Tamezkhan alias Tamejuddin v. Rajjabali Mir.(( 1927) 31 Cal. W. N. 337.) Carden Noad replied, and referred to Khimchand A. Mehta v. Emperor (A. I. R. ( 1934) B. 303.), and Mallayya v. King-Emperor.(( 1924) I. L. R. 49 M. 74.) J. M. Pringle replied on the question of the construction of s. 239. Feb. 17. The judgment of their Lordships was delivered by LORD WRIGHT. These two consolidated appeals depend substantially on the same issues of fact and involve the same questions of law. They were brought by special leave of His Majesty in Council in order to obtain a decision on the true effect of s. 239 (d) of the Criminal Procedure Code 1898, as amended to 1923, which provides that persons who are accused of different offences committed in the course of the same transaction may be charged and tried together. The question has been whether the correctness of the joinder which depends on the sameness of the transaction is to be determined by looking at the accusation or by looking at the result of the trial. Certain subsidiary questions have also been raised as affecting the validity of the trial and conviction. These are not matters which would justify special leave to appeal being granted upon the principles which this Board have adopted in guiding this discretion in criminal matters, and should not have been brought before this Board, but, as the questions have been raised, their Lordships will in due course shortly deal with them. The first appellant, Babulal Choukhani, has extensive business interests, including the ownership and operation under managers of the Bharat Lakhsmi Cinema, at Calcutta. He was convicted of theft of electricity under s. 39 of the Indian Electricity Act, 1910, and sentenced to fine and imprisonment. His conviction by the magistrate for conspiracy was, on appeal, quashed by the High Court. The second appellant, Sailendra Nath Mukherjee, was convicted of aiding and abetting the first appellant, the conviction given against him for conspiracy being likewise quashed on appeal. His conviction by the magistrate for conspiracy was, on appeal, quashed by the High Court. The second appellant, Sailendra Nath Mukherjee, was convicted of aiding and abetting the first appellant, the conviction given against him for conspiracy being likewise quashed on appeal. The separate thefts could only be treated in a case like this as forming part of the same transaction if they were unified as being overt acts done in pursuance of a conspiracy. The facts can be very shortly stated. The Calcutta Electric Supply Corporation were, in 1934, concerned to find a discrepancy between units of energy generated and those accounted for by sales in excess of what would normally be experienced by the regular causes of wastage, such as transmission or conversion losses. Special inspectors of meters were appointed, and in due course evidence of an extensive system of thieving was obtained. The method adopted was to tamper with the meters at consumers premises in such a way as to conceal the fact of tampering. The actual work was done by skilled operatives, but their activities were organized by a number of individuals who approached the consumers, and generally agreed to share with the consumers the amounts saved by the fraudulent alteration of the meter readings. They then employed and made terms with the actual tamperers. The second appellant was one of the organizers. The thefts which were charged against the first appellant were at his cinema. The facts as to the actual theft were held to be proved both by the magistrate and by the High Court. It is not now suggested there was no evidence to justify the findings on these matters. In order to examine the main question of law which was raised—namely, the construction of s. 239 (d) of the Code of Criminal Procedure, it is necessary to trace, in the briefest manner possible, the course of the proceedings. On November 17, 1934, the Electricity Corporation, having obtained sufficient prima facie materials to justify that course, lodged a complaint before the Chief Presidency Magistrate at Calcutta that their electricity was being stolen, with particular reference to the first appellants cinema and also to another cinema with which he was not connected. On November 17, 1934, the Electricity Corporation, having obtained sufficient prima facie materials to justify that course, lodged a complaint before the Chief Presidency Magistrate at Calcutta that their electricity was being stolen, with particular reference to the first appellants cinema and also to another cinema with which he was not connected. The police investigated the matter, and on January 29, 1935, made a report to the Chief Presidency Magistrate naming twenty-three persons, including the two appellants, and accusing them of being parties to a criminal conspiracy at Calcutta, Howrah, and other places in British India, to commit theft of the Corporations electric energy, and of dishonestly abstracting and using electricity in pursuance of that conspiracy at the two cinemas and other places in British India. Mr. Sinha, the Chief Presidency Magistrate, who commenced the hearing on January 29, 1935, framed charges against twelve persons of the twenty-three persons accused, after hearing evidence in chief from thirty-six persons, the most important witnesses being three approvers. The charges framed against the first appellant were as follows (1.) jointly with the other accused, including the second appellant "That you between January, 1934, and 20th January, 1935, at 2 and 2/1, Chittaranjan Avenue (Bharat Lakhsmi Picture House), Jupiter Cinema, 66/2, Beadon Street, Sealdah Hotel, 225 Harrison Road and other places in Calcutta, Howrah and 24 Perganas, along with Krishna Chandra Shome, Bholanath Chatterjee, Hardwar Singh, Aswini Kumar Panja, Nanilal Ghosh alias Noni Mistri, Putu, Md. Adbul Azim and Bhudeb Chandra Seth and others were parties to a criminal conspiracy to commit theft (dishonest consumption or user) of electric energy belonging to the Calcutta Electric Supply Corporation, Limited, by tampering with meters at the premises of the consumers and that in pursuance of the said conspiracy, theft of electric energy was in fact committed at Bharat Lakhsmi Picture House, Jupiter Cinema and other places and thereby committed an offence punishable under s. 120B of the Indian Penal Code read with s. 39 of the Indian Electricity Act and s. 379 of the Indian Penal Code and within the cognizance of this Court." (2.) against the first appellant alone " That you between April, 1934, and 16th January, 1935, at Bharat Lakhsmi Picture House situate at 2 and 2/1 Chittaranjan Avenue, Police Station Jorasanko, Calcutta, committed theft (by dishonest consumption or user) of electric energy belonging to the Calcutta Electric Supply Corporation, Limited, and thereby committed an offence punishable under s. 39 of the Indian Electricity Act (IX. of 1910) read with S.379 of the Indian Penal Code and within the cognizance of this Court." Against the second appellant there were, in addition to the joint charge against all the accused, two other charges, of which one is here material. This was as follows "That you between April, 1934, and 16th January, 1935, at Bharat Lakhsmi Picture House abetted Babulal Choukhani in the commission of the offence of theft (by dishonest consumption or user) of electric energy belonging to the Calcutta Electric Supply Corporation, Limited, which offence was committed in consequence of your abetment and you have thereby committed an offence punishable under s. 109 of the Indian Penal Code red with s. 39 of the Indian Electricity Act (IX. of 1910) and s. 379 of the Indian Penal Code and within the cognizance of this Court." These charges having been framed in accordance with s. 254 of the Code of Criminal Procedure, the trial proceeded before the Chief Presidency Magistrate, who heard a great mass of evidence both for the prosecution and the defence. On June 6, 1935, he delivered judgment, finding that the charge of conspiracy was proved against seven of the accused, including the two appellants, and acquitted the others. On June 6, 1935, he delivered judgment, finding that the charge of conspiracy was proved against seven of the accused, including the two appellants, and acquitted the others. He found the charge of theft proved against the first appellant, and sentenced him to one years rigorous imprisonment and a fine of Rs.1000 on that charge. He passed no separate sentence on the charge of conspiracy. The Chief Presidency Magistrate found the second appellant guilty of conspiracy and of abetment of theft, and sentenced him to two years rigorous imprisonment. He passed no separate sentence on the charge of abetment. On a further charge in respect of a cinema other than that of the first appellant, the Jupiter Cinema, the second appellant was acquitted. It is not relevant to discuss what was the result in respect of the other persons who were convicted. Both appellants appealed to the High Court. On July 10, 1936, the judgment of the Court was delivered by Derbyshire C.J. and Costello J. So far as concerned the charge of conspiracy, the High Court held that the conspiracy charge was not proved, and in that respect reversed the decision of the magistrate and set aside the convictions on that count. The only conspiracy charged was one single conspiracy between all the accused, consumers, organizers and tamperers. The Court held that it might well be that all the organizers and tamperers were acting in concert in such a manner as to constitute a criminal conspiracy within the meaning of s. 120B of the Indian Penal Code, but that there was no evidence to justify the finding that all the consumers were acting in concert with all the organizers and tamperers so as to constitute the single embracing conspiracy which was charged. The charge could not be established merely because of an agreement between each consumer and the particular persons who carried out the tampering operations in concert with him and for his individual benefit. But the Court held, on the construction they adopted of s. 239 (d) of the Code of Criminal Procedure, that the trial as a whole was not vitiated by reason of mis joinder of persons and charges. But the Court held, on the construction they adopted of s. 239 (d) of the Code of Criminal Procedure, that the trial as a whole was not vitiated by reason of mis joinder of persons and charges. They held that there was no reason to hold that the magistrate, in framing the charges, was acting with any evil motive, but found that he was bona fide of opinion that the evidence given in chief by the prosecution before him at the stage of the case when he was framing the charges prima facie warranted him in charging the conspiracy as he did. However mistaken his view might turn out to have been, he was judicially exercising the discretion given him by s. 239 (d) in framing the charges as directed by s. 254. They accordingly decided that the proceedings involved no breach of the provisions of s. 239 (d), and that they were not illegal or invalid. The Court further held that the form of the charges had caused no prejudice to the accused, but that the "Chief Presidency Magistrate had dealt with the evidence "against each individual accused carefully and conscientiously.” This conclusion of the Court had reference to the specific charges of overt acts of theft or abetting. The Court finally said "If we had the slightest reason to suppose that any of the convicted persons had been unfairly dealt with by reason of the whole body of them having been charged with conspiracy we should have felt it our duty to quash the proceedings. It is fortunate for the prosecution that, although we have given the closest attention and con sideration to the points urged by the learned advocates "appearing for the appellants, we have not come to any such conclusion. The pieces of evidence which Mr. Carden "Noad said would not have been admissible but for the existence of the charge of conspiracy, and also those pieces of evidence which Mr. Carden Noad declared would not be admitted in any event, none of these things have, in our opinion, had any influence adverse to the interests of the "convicted persons or any of them." This conclusion is one which their Lordships, after a careful consideration of the evidence, find no reason to dissent from. Carden Noad declared would not be admitted in any event, none of these things have, in our opinion, had any influence adverse to the interests of the "convicted persons or any of them." This conclusion is one which their Lordships, after a careful consideration of the evidence, find no reason to dissent from. They also agree with the views of the High Court on the construction and effect of s. 239 (d), and on its application in the present case. Before explaining in detail their reasons for so agreeing, their Lordships observe that they will reserve for later discussion certain minor objections urged on behalf of the appellants, which have been likewise rejected by the High Court, rightly, as their Lordships think. It has been taken as settled law on all sides throughout these proceedings that the infringement of s. 239 (d) would, if made out, constitute an illegality, as distinguished from an irregularity, so that the conviction would require to be quashed under the rule stated in N. A. Subramania Iyer v. King-Emperor (( 1901) L. R. 28 I. A. 257.) as contrasted with the result of an irregularity, as to which Abdul Rahman v. King-Emperor (( 1926) L. R. 54 I. A. 96.) is an authority. Their Lordships will assume that this is so, without thinking it here necessary to discuss the precise scope of what was decided in Subramania’s case (1), because in their understanding of s. 239 (d) that question does not arise. The Code of Criminal Procedure contains a collection of statutory rules. Sect.5, sub-s.1, provides that all offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to its (the Criminal Procedure Codes) provisions. The language of that Code is therefore conclusive, and must be construed according to ordinary principles, so as to give effect to the plain meaning of the language used. No doubt, in the case of an ambiguity, that meaning must be preferred which is more in accord with justice and convenience, but in general the words used read in their context must prevail. Sect. 239 falls within Chapter XIX., which deals with the form of charges and the joinder of charges. Under the latter division fall ss.233 to 240 inclusive. Sect. 239 falls within Chapter XIX., which deals with the form of charges and the joinder of charges. Under the latter division fall ss.233 to 240 inclusive. Sect.233 states the general rule that, for every distinct offence of which any person is accused, there shall be a separate charge, and each charge shall be tried separately, except in the cases mentioned in ss. 234, 235, 236 and 239. Sects.234, 235 and 236 deal with the joinder and trial of different offences against the same accused. Sect. 239 deals with the joinder in one charge and trial of several persons. Sect. 239 (d), if written out in full, would read thus "The persons accused of different offences committed in the course of the same transaction may be charged and tried together, and the provisions con-stained in the former part of this Chapter (that is, in regard to the form and joinder of charges) shall so far as may be apply to all such charges." The clause is expressly an exception from s. 233, and enables a plurality of offences to be dealt with in the same trial. But it does not import, either expressly or by implication, the limitation set out in s. 234 according to which not more than three offences of the same kind committed within the space of twelve months can be tried together, or the limitation contained in s. 235, sub-s. 1, under which more offences than one committed by the same person can only be tried together if they are in one series of acts so connected together as to form the same transaction, in which case there is no specific limit of number. Nor is there any limit of number of offences specified in s. 239 (d). The one and only limitation there is that the accusation should be of offences "committed in the course of the same transaction." Whatever scope of connotation may be included in the words the same transaction,” it is enough for the present case to say that if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators), these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concert and agreement which constitute the conspiracy serve to unify the acts done in pursuance of it. So far seems clear; but the point of difficulty which has been strenuously argued in this appeal relates to the point of time in the proceedings at which the condition prescribed by the clause must be fulfilled. To put it more exactly, is it enough if the con spiracy is to be found in the accusation, or must it be found in the eventual result of the trial? Is the relevant point of time that of the accusation, or that of the eventual result? For the former view there is an unbroken series of authorities in the Indian Courts, but the matter has not until now come before the Judicial Committee, and must now be decided by them. It is a question of principle, or, perhaps more correctly, of construction. Their Lordships are of opinion that the view adopted in India is correct, as the High Court have held in the present case. The clause deals with three matters, accusation, charge, trial. It says nothing about verdict. The condition is expressed in the words "persons accused of different "offences, etc." It does not say "rightly accused,” or "accused and convicted.” It is on the basis of what appears on the face of the accusation that the Court may proceed to charge and try. The accusation is necessarily anterior to the exercise of the discretion to charge and try. These are stages subsequent to the accusation. This view is strengthened by reference to s. 254, which states the duty f the magistrate in warrant cases, such as the cases in question here. The duty so stated is that the magistrate, when evidence has been taken, or at any previous stage of the case, if of opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XXI., which he is competent to try, and which, in his opinion, could be adequately punished by him, should frame in writing a charge against the accused. Similarly, in the case of trials in the High Court or Courts of Session, charges will be framed on the accusation. Similarly, in the case of trials in the High Court or Courts of Session, charges will be framed on the accusation. It is true that the opinion of the magistrate may be wrong in law as to there being a same transaction, or the evidence which led him to think prima facie that this condition existed may be insufficient or may eventually be falsified. It would result in any such events that the prosecution is enabled at the trial to join separate offences contrary to the terms of ss. 234 and 235. And it has been affirmed that improper advantage is taken of s. 239 (d) so as to bring into one proceeding a great number of accused and a great multiplicity of offences, with serious hardship and injustice to the accused. If that were indeed the result of the section, as the High Court seem to be apprehensive it might be, it would be much to be regretted, and might well be a ground for an amendment of the section by the Legislature, if such practice prevailed notwithstanding the warning of the High Court and their determination to see that accused are not being unfairly dealt with, and to prevent any procedure by which cases which should be comparatively short and simple become unwieldy, complicated and lengthy. But, even so, that can be no ground why the Court should misconstrue the section. Indeed, it is difficult to think that such apprehensions are justified. It must be hoped, and indeed assumed, that magistrates will exercise their discretion fairly and honestly. Such is the implied condition of the exercise of every discretionary power. If they do not, or if they go wrong in fact or in law, then the accused has prima facie a right of recourse to the superior Courts by way of appeal or revision. The passage already quoted from the judgment of the High Court shows how vigilant and resolute that Court would be to see that the accused were not prejudiced or embarrassed by an improper joinder of charges or of persons accused. These safeguards may well have appeared to the Legislature to be sufficient. It may seem paradoxical that the prosecution should have the advantage of joining different offences and different accused simply because the allegation of a conspiracy seemed to the magistrate to be prima facie justified, whereas at the trial the allegation breaks down. These safeguards may well have appeared to the Legislature to be sufficient. It may seem paradoxical that the prosecution should have the advantage of joining different offences and different accused simply because the allegation of a conspiracy seemed to the magistrate to be prima facie justified, whereas at the trial the allegation breaks down. But the charges have to be framed, for better or worse, at an early stage of the proceedings. It would be paradoxical if no one could tell till the end of the trial whether the trial was legal or illegal. Their Lordships decide the question on what they regard as the plain meaning of the language used. In doing so, they are in agreement not merely with the careful judgment of the High Court in the present cases, but with the various authorities which are so fully quoted in that judgment that it is not necessary here to quote them again. Mr. Carden Noad has, however, contended that at least in the majority of the cases cited the conspiracy was established in the result of the trial, so that the charge was justified by the eventual verdict, and it was immaterial whether accusation or verdict were taken as the crucial stage. That is true in some of the cases, but does not affect the construction of the section, which, in one of the earliest, Emperor v. Datto Hanmant Shahapurkar (( 1905) I. L. R. 30 B. 49.), was clearly and correctly explained in the following words of Batty J. (Ibid. 54.) "Section 239 admits of the joint trial when more persons than one are accused of different offences committed, in the same transaction. It suffices for the purpose of justifying a joint trial that the accusation alleges the offences committed by each accused to have been committed in the same transaction.” To refer to only one later case, Gopal Raghunath v. Emperor (( 1928) I. L. R. 53 B. 344.), the charge of conspiracy failed, but the con victions for specific acts were upheld. Baker J. said (Ibid. Baker J. said (Ibid. 351.) "So long as the accusation against ail the accused persons is that they carried out a single scheme by successive acts, the necessary ingredients of a charge regarding the one transaction would be fulfilled, and the fact that the conspiracy was not established would not vitiate the trial as regards those acts for which the evidence was sufficient for proof." Mr. Carden Noad further cited certain cases which he said supported his construction of s. 239 (d) because in those cases convictions were set aside as not satisfying the requirements of the Code as to joinder of persons and offences, though, as he contends, the Courts might have acted upon s. 239 (d). It is not necessary to refer to these cases in detail, because they seem to be essentially distinguishable in that no conspiracy or joint transaction was charged. To take one instance, in Gobind Koeri v. Emperor (( 1902) I. L. R. 29 C. 385.) a boy was charged and convicted of placing clods on a railway line, and two other boys at the same trial were charged and convicted of rescuing him from legal custody. The convictions were quashed because the three offences were not charged as committed in the same transaction and the placing of the clods and the rescue were on their face separate offences. In their Lordships judgment, the appeals fail in so far as they are based upon s. 239 (d). This is the ground on which it seems that special leave to appeal was granted. But, in any case, the further grounds argued on behalf of the appellants are not such as in their Lordships opinion justify in a criminal matter recourse to the jurisdiction of the Judicial Committee. The natures of such grounds have often been stated. In Abdul Rahman v. King-Emperor (( 1926) L. R. 54 I. A. 96.) it was contended that inasmuch as special leave to appeal had been granted the ordinary rules limiting the exercise of this jurisdiction ceased to apply. The Judicial Committee rejected that contention, following Arnold v. King-Emperor (( 1914) L. R. 41 I. A. 149.), where the language of Billets case (( 1887) 12 App. Cas. 459.) was adopted and repeated (Ibid. The Judicial Committee rejected that contention, following Arnold v. King-Emperor (( 1914) L. R. 41 I. A. 149.), where the language of Billets case (( 1887) 12 App. Cas. 459.) was adopted and repeated (Ibid. 467.) "the rule has been repeatedly laid down, and "has been invariably followed, that Her Majesty will not review or interfere with the course of criminal proceedings, unless it is shown that by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done." In other words, the Judicial Committee is not a Court of Criminal Appeal. But, as the further objections raised by the appellants have been argued, their Lordships will shortly deal with them. It was argued that the specific offence was wrongly charged under s. 39 of the Electricity Act, and could only legally be charged under s. 44 (c) of the Act, which makes it an offence (inter alia) wilfully or fraudulently to alter the index of a meter, or prevent a meter from duly registering. No doubt a charge could have been preferred under that section, if the condition of the jurisdiction of the magistrate that an order should be made by the Local Government consenting to the initiation of the proceedings (s. 196A, Code of Criminal Procedure), had been satisfied, as in fact it was not. But the existence of s.44 (c) does not prevent the charge which was made under s.39 from being properly made. Sect.39 is, in fact, the major offence. That offence was clearly established, because the user of electric current without the intention of paying is beyond question a dishonest user. That is all that is required under s. 39, which creates a statutory theft sufficiently established against whoever dishonestly abstracts, consumes or uses the energy. The technical rules applicable to proving the theft of a chattel do not apply to proof of this special offence. Then it was contended that the charge of theft was not properly framed because it alleged a multiplicity of offences between April, 1934, and January 16, 1935, whereas the offences did not constitute a single continuing offence; they were separate offences committed on particular dates, and should have been separately charged. Their Lordships feel that the form of the charge was most irregular and regrettable and one which should be avoided. Their Lordships feel that the form of the charge was most irregular and regrettable and one which should be avoided. But they cannot regard this objection as one which, in the circumstances of this case, should receive effect, especially because they agree with the High Court that no injustice was inflicted on the appellants. The specific offences of which they were accused were satisfactorily proved by competent evidence, corroborated in all necessary respects. There was no miscarriage of justice. In addition, the irregularity was such as could be, and was, cured under ss. 225 and 537 by the finding that the accused had not been prejudiced. A minor point that the charge of theft was bad as not alleging that the thefts were committed in pursuance of the conspiracy, and therefore not alleging a same transaction, is without substance. The specific charge was clearly to be read with the conspiracy charge. In the result, their Lordships are of opinion that the points taken on the appeals on behalf of the appellants fail, and that the judgment of the High Court was right and should be affirmed. Both appeals should be dismissed. They will humbly so advise His Majesty.