ORDER The petitioner is the first accused in C.C.No.35 of 1987 on the file of the Second Additional Sessions Judge, Madras. The second accused in said Calendar Case Thavamani Thiyagarajan is the wife of the petitioner. 2. The petitioner is a male nursing assistant in the Government Stanley Hospital, Madras and his wife Thavamani is a staff nurse at Government General Hospital, Madras. Both of them originally resided at No.24, Servant Quarters, Stanley Medical Hospital along with the father of the petitioner (since deceased) the mother of the petitioner and five of his brothers and later shifted to No.1S, Shanmuglvarayan Street, Madras-1. 3. On credible information that the petitioner who had been transferred from the Government Stanley Hospital, Madras, to the Government Headquarters Hospital, Thanjavur, had been systematically organising thefts of medicines from the Government Hospital and concealed the said stolen medicines in his house at No.18, Shanmugharayan Street, Madras-1 and had thus acquired disproportionate wealth, the Sub-Inspector of Police, Crime Branch, C.I.D., Madras, after obtaining a search warrant from the Chief Metropolitan Magistrate, searched the aforementioned premises at or about 2 P.M. on 14.4.1984 in the presence of witnesses. The second accused Thavamani was also present then. During the search of the bed room inside the house, located on the northwestern side, there was a green coloured locked steel almirah, which was opened by the second accused Thavamani with the keys in her possession. Inside the almirah a polythene fibre bag with inscription on both sides was found which contained some tablets and injection ampules. Inside the locker of the steel bureau and another locker in yet another bureau a white cloth bag, a khaki cloth bag, a red coloured refine zip bag, a brown colour refine zip bag, another brown colour small zip bag, a small aluminium square type box containing a stitched khaki bag inside it, a brown colour leather wallet and a big aluminium square box with a wooden handle were found, which in turn contained cash in various denominations totaling in all to Rs.4, 06, 122.75, when the second accused Thavamani was questioned about the presence of huge cash, she stated that her husband alone could explain. She also informed the investigating officer that the petitioner had gone to Velankanni shrine on 13.4.1984 and did not know when he would return. 4. She also informed the investigating officer that the petitioner had gone to Velankanni shrine on 13.4.1984 and did not know when he would return. 4. The Inspector of Police, Crime Branch, C.I.D., registered Cr.No.34 of 1984 under Sec.102, Crl.P.C., and took up the investigation. The first information report was transferred to the Directorate of Vigilance and Anti-Corruption since an offence under Sec.5(1)(e) of the Prevention of Corruption Act was made out. After investigation the respondent filed a final report against the petitioner and his wife under Sec.5(1)(e) of the Prevention of Corruption Act, for having possessed pecuniary resources and property disproportionate to their known sources of income to the tune of Rs.3, 30, 158. For the check period from 1.121974 to 30.4.1984 the total income of the petitioner, his wife and the father of the petitioner has been computed at Rs.2, 86, 758.35, while the total expenditure has been fixed at Rs.1, 11, 064.75 and their likely savings at Rs.1, 75, 693.59. The Rs.5, 05, 852.38 and the basic assumption was total value of assets was estimated to be that prior to 1.12.1974 the petitioner and his wife had assets of only Rs.1, 994. 5. The charge framed against the petitioner and his wife reads as follows: “That you A1 and A2 being public servants, to wit male Nursing Assistant, Government Stanley Hospital, Madras and Staff Nurse, Government General Hospital, Madras respectively between the period from 1.12.1974 to 30.4.1984 at Madras and being husband and wife living together during the said period, acquired assets which were disproportionate to your known sources of income and were in possession of pecuniary resources and property disproportionate to your known sources of income amounting to Rs.3, 30, 158 as on 30.4.1984 for which both of you cannot satisfactorily account and thereby you A1 and A2 committed an offence punishable under Sec.5(2) read with Sec.5(1)(e) of the Prevention of Corruption Act3II of 1947 and within my cognizance. And I hereby direct that you A1 and A2 be tried before me on the said charge”. It is obvious that there is no charge of conspiracy or common intention or aiding and abetting against the petitioner and his wife. It must also be mentioned here that the deceased father of the petitioner claimed that he was the owner of the seizure, but his claim was allowed only to the extent of Rs.1, 38, 726. It is obvious that there is no charge of conspiracy or common intention or aiding and abetting against the petitioner and his wife. It must also be mentioned here that the deceased father of the petitioner claimed that he was the owner of the seizure, but his claim was allowed only to the extent of Rs.1, 38, 726. Thus, the prosecution would have it that the petitioner and his wife are deemed to be in joint possession of the balance of Rs.2, 67, 396.75. 6. The petitioner and his wife moved the trial Court in Crl.M.P.No.3938 of 1988 and 3937 of 1988 respectively contending that they cannot be tried on a single charge in the same trial especially when the husband need not have to account for the assets of the wife and equally the wife was not responsible to account for the disproportionate assets of the husband. It was also contended before the trial Court that Sec.223, Crl.P.C., would not permit a joint trial on a single charge, against both of them. 7. The trial Judge, after hearing both the parties, dismissed the prayer made by the petitioner and his wife holding that a joint trial will not be feasible, only if the prosecution had alleged that by corrupt or illegal means or by otherwise abusing their position as public servants they had obtained for themselves or for any other person any valuable thing or pecuniary advantage land that in a case of possession of pecuniary resources or property disproportionate to their known sources of income the exception under Sec.223, Crl.P.C., will operate. The aggrieved petitioner has chosen to invoke the inherent powers of this Court to have the order of the trial Court, set aside. 8. Mr.K.Rangavajulla, learned counsel appearing for the petitioner, contends that in this case, when there is no conspiracy or common intention or abetting or aiding alleged against the petitioner and his wife, the concept of fair trial would be served only by separate trials for the offences alleged to have been committed by the petitioner and his wife. He would further contended that the exceptions applicable are when the accused commits connected offences or some offence jointly with others in the course of the same transaction. He would submit that the husband quite independently of his wife can decide to amass wealth disproportionate to his income and so can the wife. He would further contended that the exceptions applicable are when the accused commits connected offences or some offence jointly with others in the course of the same transaction. He would submit that the husband quite independently of his wife can decide to amass wealth disproportionate to his income and so can the wife. In such a case, there can be no common link in their amassing such wealth and the mere fact of the two accused being husband and wife and living in the same house cannot furnish the common link. He would further add that there must be proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts to lead to the inference that they form part of the same transaction and the common link should indicate unity of purpose or design so as to weave the separate acts or omissions of two or more persons into one transaction. He would refer to Sec.5(1)(e) of the Prevention of Corruption Act and contend that the section would be applicable to that person, who is a public servant who is unable to satisfactorily account for the pecuniary resources or property disproportionate to his known sources of income found in his possession or in the possession of any person on his behalf. Quoting Sec.223(a), Crl.P.C., he would submit that the facts will not permit a joint trial on the basis of the commission of the same offence by the petitioner and his wife in the course of the same transaction. He would urge that the other sub-sections of Sec.223, Crl.P.C., are not attracted to the facts of this case. He would cite State of Andhra Pradesh v. Cheemlapati Ganeswar Rao and another State of Andhra Pradesh v. Cheemlapati Ganeswar Rao and another A.I.R. 1963 S.C. 1850 wherein the Supreme Court had considered the scope of Sec.239, Crl.P.C., (old Code) which corresponds to Sec.223, Crl.P.C. (New Code). He would also draw my attention to the decision rendered by the Supreme Court in State of Maharashtra v. Wasudeo Ramachandra Kaidahwar State of Maharashtra v. Wasudeo Ramachandra Kaidahwar A.I.R. 1981 S.C. 1186(1981)1 S.C.C. 199wherein the ingredients of Sec.5(1) (e) of the Prevention of Corruption Act and the onus of the prosecution and the defence have been considered. 9. He would also draw my attention to the decision rendered by the Supreme Court in State of Maharashtra v. Wasudeo Ramachandra Kaidahwar State of Maharashtra v. Wasudeo Ramachandra Kaidahwar A.I.R. 1981 S.C. 1186(1981)1 S.C.C. 199wherein the ingredients of Sec.5(1) (e) of the Prevention of Corruption Act and the onus of the prosecution and the defence have been considered. 9. The learned counsel would also refer to Sec.27 of the Indian Penal Code which contemplates that when property is in the possession of a person's wife clerk or servant on account of that person, it is in that person's possession, within the meaning of that Code. 10. Finally, the learned counsel for the petitioner would contend that a separate trial is the rule and a joint trial is an exception and that if the prosecution was unable to prove as to who was in possession of the assets found, the impossibility of discharging its burden cannot permit a joint trial on a single charge, since it will be unfair to the defence and is bound to embarrass the accused. 11. Mr.T.Munirathina Naidu, learned counsel appearing on behalf of the Government Advocate for the respondent while countering the arguments of the learned counsel for the petitioner, would contend that the prosecution would establish during the course of the trial, possession of the assets disproportionate to the known sources of income of either of the accused and for the present the seizure of the money from the premises jointly occupied by both of them, which they had not satisfactorily explained, would permit a joint trial under a common charge, for it would come within the ambit of ‘same transaction’. He had no authorities to substantiate his proposition. 12. Before adverting to the rival contentions of either counsel, it must be borne in mind that no allegations are made against the second accused except for the fact that she was present during the search and had opened the steel almirah with the keys in her possession. It cannot also be lost sight of, that when she was questioned she had stated that her husband alone has to account for the cash found in the steel almirah. It is also apparent from the records that the father of the petitioner had claimed the seized money as his. It cannot also be lost sight of, that when she was questioned she had stated that her husband alone has to account for the cash found in the steel almirah. It is also apparent from the records that the father of the petitioner had claimed the seized money as his. It is further obvious that several adult male members were living in the premises which was searched, of whom two are public servants. Sec.5 (1) (e) of the Prevention of Corruption Act reads as under: “A public servant is said to commit the offence of criminal misconduct if he or any person on his behalf is in possession or has, at any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.” This Sec.5(1)(e) does not contemplate joint possession but takes in its fold property or pecuniary resources held by any other person on behalf of the public servant. It is the definite prosecution case that the petitioner had stolen medicines from the Government Hospital and obtained disproportionate wealth. In this context, a reference to Sec.27, I.P.C. about the property in possession of a wife being deemed to be in that person's possession would not be out of place, though it can be argued that the section does not say, that such possession is not that of the wife also. However, certain basic material, to indicate that both the accused had acted in concert or in association to infer that the same offence had been committed, would be necessary before a joint trial could be permitted. Further, that the accused persons committed the same offence in the course of the same transaction must also be feasible for a joint trial. The word ‘transaction’ means a group of acts so connected together as to involve unity, continuity and connection. The tests to decide whether different acts are part of the same transaction are proximity of time, unity of place, unity of purpose or design and continuity of action. The main test would be unity of purpose. If various acts are done in pursuance of a particular end in view they may be treated as parts of the same transaction. As to what is the same transaction must depend on the facts and circumstances of each particular case. The main test would be unity of purpose. If various acts are done in pursuance of a particular end in view they may be treated as parts of the same transaction. As to what is the same transaction must depend on the facts and circumstances of each particular case. As pointed out by the Supreme Court A.I.R. 1963 S.C. 1850, wherein same transaction not defined, has been considered the object of enacting Sec.239, Crl.P.C., (old Code) corresponding to Sec.223, Crl.P.C., (new Code) was to avoid multiplicity of trials and the only limitation which could properly be placed on the trial of several persons for the same kind of or different offences would be that which considerations of justice and fairness would require. The Supreme Court had further pointed out as follows: “No doubt, as has been rightly pointed out in this case, separate trial is the normal rule and joint trial is an exception. But while this principle is easy to appreciate and follow where one person alone is the accused and the interaction or intervention of the acts of more persons than one does not come in, it would where the same act is committed by several persons, be not only inconvenient but injudicious to try all the several persons separately. This would lead to unnecessary multiciplity of trials involving avoidable inconvenience to the witnesses and avoidable expenditure of public time and money. No corresponding advantage can be gained by the accused persons by following the procedure of separate trials. Where, however, several offences are alleged to have been committed by several accused persons it may be more reasonable to follow the normal rule of separate trials. But here, again, if those offences are alleged not to be wholly unconnected but as forming part of the same transaction the only consideration that will justify separate trials would be the embarrassment or difficulty caused to the accused persons in defending themselves. We entirely agree with the High Court that joint trials should be founded on some ‘principle’.” 13. But here, again, if those offences are alleged not to be wholly unconnected but as forming part of the same transaction the only consideration that will justify separate trials would be the embarrassment or difficulty caused to the accused persons in defending themselves. We entirely agree with the High Court that joint trials should be founded on some ‘principle’.” 13. On the facts of this case when the act alleged against one of the accused is her presence during the search and opening of the almirah, to bring her directly within the term ‘possession’ contemplated under Sec.5(1)(e) of the Act, or in the alternative deeming her to be in possession of the property in view of her act of handing over the keys to open the almirah, the possession by the petitioner of the same, would create ambiguity, which the defence will have to sort out, after the initial onus of ‘possession’ is discharged by the prosecution. Naturally the defence of either of the accused is bound to embarrass the other and the concept of fairness and considerations of justice indicated by the Supreme Court will automatically step in, requiring separate trials, on the peculiar facts of this case. It cannot be said that no corresponding advantage enures to the accused by the following the procedure of separate trials. It is in this context that the burden cast on the prosecution and the defence by the self-contained provision of Sec.5(1)(e) of the Act assumes importance. To establish an offence under Sec.5(1)(e) of the Act all that the prosecution has to prove is: (1) The accused is a public servant; (2) The nature and extend of the pecuniary resources or property which are found in his possession; (3) Proof as to what were his known sources of income that is known to the prosecution (not known to the accused), and (4) To prove quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources off income. As has been observed by the Supreme Court in A.I.R. 1981 S.C. 1186, once these four ingredients are established, the offence of criminal misconduct under Sec.5(1)(e) is complete unless the accused is able to account for such resources or property. The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets. As has been observed by the Supreme Court in A.I.R. 1981 S.C. 1186, once these four ingredients are established, the offence of criminal misconduct under Sec.5(1)(e) is complete unless the accused is able to account for such resources or property. The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets. It is quite possible in this context to conceive how prejudicially the defence of one of the accused could be thwarted by the other accused in the event of an ulterior motive. As stated earlier, Sec.5(1)(e) of the act does not prima facie contemplate joint possession of property or pecuniary resources and I am satisfied that on the facts of this case a joint trial will not be in the interests of justice, for embarrassment or difficulty in defending themselves (each of the accused) is patent and judicial fairness requires separate trials, I am unable to accede to the contention of the prosecution that since money was found in the premises occupied by both the accused (public servants) which they had not satisfactorily explained the words ‘same transaction’ the Sec.223(a), Crl.P.C., would be attracted. The reasoning of the trial Judge that joint possession of (a) cash of Rs.10, 463.63 in a Savings Bank account and (b) jewellery valued at Rs.1, 612 taken along with the lack of allegation by prosecution that the accused had by corrupt or illegal means or by otherwise abusing their position as public servants had obtained for themselves or for any other person any valuable thing or pecuniary advantage, would permit a joint trial under a single charge falling within the contemplation of Sec.223(a), Crl.P.C. cannot be sustained. The mere relationship between the public servanxsts and their living jointly will not be sufficient on facts, to permit a joint trial. No material has been placed by the prosecution to indicate any common link in either of the amassing wealth. The prosecution will have to establish the person in possession of the assets found and the difficulty faced by it if any, cannot erase the right of the petitioner to a separate trial, especially when prejudice and embarrassment is writ large. The submissions of the learned counsel for the petitioner which are unassailable, commend acceptance. This petition is allowed. The prosecution will have to establish the person in possession of the assets found and the difficulty faced by it if any, cannot erase the right of the petitioner to a separate trial, especially when prejudice and embarrassment is writ large. The submissions of the learned counsel for the petitioner which are unassailable, commend acceptance. This petition is allowed. The joint charge framed is quashed and the Second Additional Sessions Judge is directed to split up the case against the petitioner in C.C.No.35 of 1987, and dispose it of in accordance with law. B.S. ----- Petitions allowed.