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.