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Abdul Majid v. The Emperor Opposite Party.
Opinion Summary — Hakington, J.
Factual and Procedural Background
A rule was granted calling upon the Deputy Magistrate to show cause why the conviction and sentence passed on the petitioner, Abdul Majid (also referred to as Majid Ali), should not be set aside and why he should not be retried. The rule did not state its grounds; the ground argued at hearing was that the joint trial of the petitioner and the other prisoners was illegal under section 233 of the Code of Criminal Procedure.
The petitioner had been tried jointly with Sayad Ali, Safar Ali, Abdul Aziz and Umedannessa on charges of dishonestly retaining various items (saris, a mirror, a waistcoat, etc.) alleged to be proceeds of a single burglary at the house of Chandra Kumar Dutt on the night of 4 June. All prisoners were convicted: Abdul Majid, Sayad Ali and Safar Ali were sentenced to 18 months' rigorous imprisonment under section 411 IPC; Abdul Aziz to 9 months' rigorous imprisonment; Umedannessa was fined. On appeal, the convictions and sentences were confirmed except for Abdul Aziz's.
Relevant factual background in the trial: the stolen property came from the same burglary. Abdul Majid and another man had offered to recover the stolen property and did restore one sari to the prosecutor for Rs. 5 and obtained other sums to assist in recovery. Failing to recover the remainder, information was given to the police; on 19 July the prisoners' houses were searched and various articles were found and identified by the prosecutor as his.
On the rule's hearing the Criminal Bench's judges differed in opinion and the case was re-argued before Hakington, J., who delivers the opinion summarized here.
Legal Issues Presented
- Whether the joint trial of Abdul Majid and the other prisoners on separate charges of dishonestly retaining different stolen articles (allegedly at different places) was illegal under section 233 of the Code of Criminal Procedure.
- Whether the offences alleged could be treated as part of the same transaction so as to justify a joint trial under section 239 of the Code of Criminal Procedure.
- Whether section 537 of the Code of Criminal Procedure operates to cure the defect of a joint trial that allegedly contravenes section 233 (in light of a decision of the Privy Council referred to in the opinion).
Arguments of the Parties
Petitioner's Arguments
- The joint trial was illegal under section 233 because each charge disclosed a different offence by a different prisoner: (a) different property in respect of which dishonesty was alleged, and (b) different places of retention, despite the same date being stated.
- Separate offences by different persons, consisting of retaining different items at different places, could not properly be part of the "same transaction" to justify joinder under section 239.
Crown's Arguments
- The offences were committed in the same transaction and so the case falls under section 239, making the joint trial lawful.
- The facts relied upon to show a single transaction were: (a) the stolen property constituted the proceeds of one theft, and (b) Abdul Majid acted as agent for the thieves and had represented that he and the thieves were interdependent in removing the property.
- It was further contended that because the prisoners might have been jointly indicted and tried for stealing the articles or for retaining the whole proceeds, they could not have been prejudiced by being jointly tried on the several charges of retaining different stolen articles; therefore section 537 would apply to cure any irregularity.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Decision of the Privy Council (unnamed in the opinion) | That section 537 does not apply to cure a trial conducted in breach of section 233 — i.e., a man tried on several charges in breach of section 233 is not saved by section 537. | The court relied on this Privy Council holding to reject the Crown's contention that section 537 could validate a joint trial that contravened section 233, and observed that the Privy Council reasoning would apply with even greater force to the joint trial of several persons on several charges. |
Court's Reasoning and Analysis
The court began from the premise that, prima facie, it is illegal to try at one trial charges which, in substance, constitute different offences committed by different persons at different places. The court explained that it is one offence for one person to retain a stolen sari at one place, and a quite distinct offence for another person to retain a stolen mirror at another place; the judge found it difficult to see how separate retainers by separate persons of separate articles at different places could be part of the same transaction.
The court acknowledged that multiple persons might jointly retain the proceeds of a robbery under joint control and could in some circumstances be charged with retaining the whole proceeds even if different articles were deposited in different places. However, the court emphasized that this was not the factual or pleading situation before it: the prisoners were not charged with retaining the whole proceeds jointly; instead each prisoner was charged with a separate offence of retention.
Turning to the Crown's contention that the offences formed part of the same transaction, the court considered the facts relied upon (common origin of the stolen property and alleged agency/coordination by Abdul Majid) but found these insufficient to treat the separate retainers as the same transaction for the purpose of justifying joinder under section 239.
On the question of section 537, the court expressly relied on the Privy Council's holding that section 537 does not apply where a man is tried on several charges in breach of section 233. The court held that that authority applies with even greater force where several persons are tried on several charges—circumstances not permissible under English practice and therefore not cured by section 537.
The court also addressed prejudice to the petitioner: had he been tried jointly on a charge of theft he might have rebutted the presumption drawn from recent possession by showing he was elsewhere when the robbery occurred; had he been charged with retaining the whole of the stolen property he might have been entitled to be tried separately and could have called the other prisoners as witnesses. These points supported the conclusion that the petitioner could have been prejudiced by a joint trial on separate charges.
On the basis of this reasoning—(1) the distinctness of the individual offences charged, (2) the inapplicability of the theory of joint retention as pleaded, (3) the Privy Council authority limiting the scope of section 537, and (4) the real risk of prejudice to the petitioner—the court concluded that the petitioner's argument must prevail.
Holding and Implications
Holding: The court ordered that the rule previously issued be made absolute.
Implications: By making the rule absolute the court granted the relief sought by the petitioner under that rule (the rule, as framed, called upon the Deputy Magistrate to show cause why the conviction and sentence should not be set aside and why the petitioner should not be retried). The direct effect is therefore to vindicate the petitioner's contention that his joint trial on the separate charges was illegal under section 233 and to afford the relief provided by the rule. The opinion does not announce a broader new precedent beyond its application of the Privy Council holding and the statutory provisions discussed; its effect as stated in the opinion is to set aside the impropriety in the joint trial and to make the rule absolute as to the petitioner.
Judge: Hakington, J. — "Rule made absolute." (End of opinion text.)
Hakington, J.:— In this case a rule has been granted calling upon the Deputy Magistrate to show cause why the conviction and sentence passed on Majid Ali should not be set aside, and why he should not be retried. The rule does not state the grounds on which it was granted but the ground argued is that the joint trial of the Petitioner and the other prisoners was illegal under sec. 233 of the Code of Criminal Procedure.
On the rule coming up for hearing the learned Judges of the Criminal Bench differed in opinion. The case has accordingly been re-argued before me.
The Petitioner, Abdul Majid, was tried with Sayad Ali, Safar Ali, Abdul Aziz and Umedannessa: the charge against him was “that you on or about the 19th day of July 1905 at Muradpur in Commilla town dishonestly did retain stolen property, to wit, one silk sari and one Benares sari, the property of Chandra Kumar Putt knotting or having reason to believe the same to be stolen property and thereby committed an offence under sec. 411 of the Indian Penal Code.” The charge against Abdul Aziz was in the same terms omitting the words “one silk sari.” That against Sayad All was similarly framed but charged the dishonest retainer as being at Bhat Keshwari in Thannah Katwall—and the property retained one mirror the property of Chandra Kumar Dutt and one waist coat the property of Bonode Chandra Sen.
Safar Ali was similarly charged with dishonestly retaining a sari the properly of Chandra Kumar Dutt at Tetarara in the Thannah Katwali; Umedannessa with dishonestly retaining possession of one wrani the property of one Chandra Kumar Dutt at Sabhapur in Commilla town.
All the prisoners were convicted: Abdul Majid, Sayad Ali and Safar Ali were sentenced under sec. 411, I.P.C, to 18 months' rigorous imprisonment each, Abdul Aziz to 9 months rigorous imprisonment and Umedannessa was fined. The convictions and sentences were except that of Abdul Aziz confirmed on appeal.
The property which the various prisoners were charged with retaining was all the proceeds of one burglary which was committed at the house of Chandra Kumar Dutt on the night of the 4th of June. Abdul Majid prisoner and another man offered to recover the stolen property and did in fact restore the prosecutor one sari for which they got Rs. 5 and they exacted diverse other sums of money to enable them to catch the thieves and recover the proceeds of the robbery.
As they failed either to restore the property or to catch the thieves information was given to the Police. On July 19th the houses of the prisoners were searched, and the various articles which they are charged with having dishonestly retained were found in the different houses and were identified by the prosecutor as his.
In support of the rule it is argued that each charge discloses a different offence by each prisoner although the date is the same on which the offences are alleged to have been committed, each prisoner (excepting Abdul Aziz) is charged with having dishonestly retained property different from that retained by Abdul Majid, at a place different from that in which Abdul Majid retained stolen property. The charges therefore must be tried separately under sec. 233, Code of Criminal Procedure.
For the Crown it is contended that the offences were committed in the same transaction and so the case falls under sec. 239. The joint trial is not illegal.
The facts which are relied on as shewing that the offences were all part of the same transaction are (a) that the stolen property was the proceeds of one theft, (b) that Abdul Majid was acting as agent for the thieves and had stated that he could not remove the property without their assistance and they could not remove it without his.
It was also contended that inasmuch as all the prisoners might have been indicted and tried jointly for stealing the articles which was found in their possession they are not prejudiced by being jointly tried on the several charges of retaining the different stolen articles, and that therefore if the trial is not in ??? accordance in sec. 233, sec. 537 would ??? apply.
In my opinion the Petitioner's argument must prevail.
Primâ facie it is illegal to try at one trial a charge against Abdul Majid of dishonestly retaining at Muradpur a silk sari belonging to Chandra Kumar Dutt and a charge against Sayad Ali of dishonestly retaining at Bhat Keshwari in Thannah Katwali a mirror belonging to Chandra Kumar Dutt and a waist coat belonging to Benode Chandra Sen. It is one offence if one person retaius a stolen sari at one place, and quite a distinct offence if another person retains a stolen mirror at another place and I confess I find it difficult to see how separate retainers, by separate persons, of separate articles at different places could be in the course of the same transaction.
No doubt several persons may retain the proceeds of a robbery under their joint control and may jointly retain the whole proceeds though they might deposit different articles in different places and might be jointly charged with retaining the whole, bud that is not this case. They are not charged with retaining the whole—but each prisoner is charged with a separate offence, and each offence must under sec. 233 be tried separately.
It has been pressed in argument that because the prisoners might have been jointly indicted for the robbery or might have been jointly indicted for dishonestly retaining the whole proceeds they cannot have been prejudiced by being jointly tried on separate charges for separate offences and therefore sec. 537 applies.
As to this the Privy Council have held ??? sec. 537 does not apply in a case ??? a man is tried on several charges ??? in breach of sec. 233—although ??? such a trial under the practice obtaining in England of joining several misdemeanors in one indictment need not be necessarily unfair to the prisoner. This decision would, I think, apply with greater force to the joint trial of several persons on several charges, which could not have been held under the English practice.
And I do not agree with the proposition that the Petitioner cannot have been prejudiced because he might have been tried jointly with other prisoners on another charge. Had he been tried jointly with the others on a charge of theft he might have been able to rebut the presumption to be drawn from recent possession of stolen property by shewing that he was at some other place when the robbery was committed: had he been tried jointly with the other Petitioners on a charge of retaining the whole of the stolen property on shewing that there was no joint retainer he might have claimed to be charged and tried separately in which case he could have called the other prisoners as witnesses if be so desired.
For these reasons the rule must be made absolute.
N.G
Rule made absolute.
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