Harington, J.:— In this a Rule has been granted calling upon the Distinct Magistrate to shew cause why the conviction and sentence passed on Abdul Majid should not be set aside, and why he should not be re-tried. 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 section 233 of the Code of Criminal Procedure.

2. On the Rule coming up for hearing the learned Judges of the Criminal Bench differed in opinion. The case has accordingly been reargued before me. The petitioner, Abdul Majid, was tried with Sayad Ali, Safar Ali, Abdul Aziz and Umedanessa: the charge against him was “That you on or about the 19th day of July 1905 at Muradpur in Comilla town dishonestly did retain stolen property, to wit, one silk sari and one Benares sari, the property of Chandra Kumar Dutta knowing or having reason to believe the same to be stolen property and thereby committed an offence under section 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 Ali was similarly framed, but charged the dishonest retainer, as being at Bhat Keshar in Thannah Kotwali;; and the property retained one mirror, the property of Chandra Kumar Dutta, and one waistcoat, the property of Binode Chandra Sen.

3. Safar Ali was similarly charged with dishonestly retaining a sari the property of Chandra Kumar Dutta at Tetara in Thannah Kotwali:— Umedanessa with dishonestly retaining possession of one urani, the property of Chandra Kumar Dutta at Sabhapur in Comilla town. All the prisoners were convicted: Abdul Majid, Sayad Ali and Safar Ali, were sentenced under section 411, Indian Penal Code, to 18 months' rigorous imprisonment each, Abdul Aziz to 9 months' rigorous imprisonment and Umedanessa was fined. The convictions and sentences were, except that of Abdul Aziz, confirmed on appeal.

4. 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 Dutta 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 extracted diverse other sums of money to enable them to catch the thieves and recover the proceeds of the robbery.

5. 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.

6. 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 section 233, Code of Criminal Procedure For the Crown it is contended that the offences were committed in the same transaction and as the case falls under section 239, the joint trial is not illegal. The facts which are relied on as showing 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 were found in their possession, they are hot 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 with section 289, section 537 would apply.

7. In my opinion, the petitioner's argument must prevail.

Prima 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 Dutta and a charge against Sayad Ali of dishonestly retaining at Bhat Keshwari in Thannah Kotwali a mirror belonging to Chandra Kumar Dutta, and a waist-coat belonging to Binode Chandra Sen. It is one offence, if one person retains 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.

8. 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: but that is not the case. They are not charged with retaining the whole, but each prisoner is charged with a separate offence and each offence must under section 233, be tried separately.

9. 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, section 537 applies. As to this, the Privy Council have held that section 537 does not apply in a case where a man is tried on several charges together in breach of section 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.

10. And I do not agree with the proposition that the petitioner cannot have been prejudiced because he might have been tried jointly with the 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 he so desired.

11. For these reasons the Rule must be made absolute.

Brett, J.:— The petitioner, Abdul Majid, was tried with four others before the Deputy Magistrate of Tipperah in one trial on charges under sec. 411, I.P.C All five were convicted. Abdul Majid, Sayad Ali, and Safar Ali, were sentenced under sec. 411, I.P.C, to rigorous imprisonment for 18 months each, Abdul Aziz was sentenced under the same section to 9 months' rigorous imprisonment, and the fifth a, ccused Umedannessa who was in a critical state of health was sentenced under the same section to a fine of Rs. 2 or in default to imprisonment till the rising of the Court. On the 4th June, 1905, a burglary was committed in the house of Babu Chandra Kumar Dutt in the town of Comillah and property worth Rs. 600 was stolen. Information was given to the police and after inquiry had been made and no clue obtained to the offenders, the case was reported as true, the offenders being not detected.

12. The complainant then proceeded to make enquiry himself through his servants and received information from Altab Ali, one of his peons, that Abinash Doctor and the accused Abdul Majid would try to find the stolen property if they were paid Rs. 25. The complainant sent for them and offered to pay them Rs. 50 as a reward if they would recover the stolen property for him. Some few days afterwards the accused Abdul Majid brought a Benares sari to the complainant, which complainant recognized as his, and as one of the articles which had been stolen from his house. The accused Abdul Majid demanded Rs. 5 from complainant for it. Complainant paid the sum, and kept the sari. It was Exh. 1, in the trial. There was another interview between complainant and Abinash Doctor and Abdul Majid the next day, at a place near the house of one Grish Chandra Sen, and the two persons told the complainant that he must give them Rs. 2 in order to enable them to buy liquor and make the thieves drunk, so that from them in that condition they might obtain some clue to the stolen property. The complainant gave them Rs. 2. Next day, Abdul Majid came back and demanded Rs. 2 more, saying one of the rupees which complainant had given him was bad and that he had spent Rs. 3 on the liquor. The complainant gave him Rs. 2. Other negotiations were afterwards carried on between complainant and the same persons for the recovery of his property which ended in their saying that the thieves wanted Rs. 70 for the things and on complainant's agreeing to pay Rs. 60 and in fact paying over Rs. 12 to the accused Abdul Majid. No other property was restored to complainant however, and on the 10th July complainant told a Sub-Inspector of Police, Rajaui Babu, all that he had done, apparently they laid a trap to catch the thieves and complainant paid Rs. 18 more to Abdul Majid and Abinash Doctor. The trap failed and the Sub-Inspector then proceeded on the 19th July to search the houses of different persons, including the houses of the five accused. In the houses of all, various articles were discovered, which were all identified by the complainant as his property, and part of that which had been stolen from his house at the time of the burglary.

13. The Magistrate who tried the case was satisfied on the evidence that the property identified by the complainant was in fact his property, and that each and all of the accused were in dishonest possession of it. Each accused appears to have claimed the property as his own, but their evidence was disbelieved. The accused being then found in possession of stolen property shortly after the theft and having failed satisfactorily to explain how the property came to their possession, the Deputy Magistrate drew the presumption which under sec. 114 of the Evidence Act he was justified in drawing, that each and all of them were in possession of the property or received the property, knowing it to be stolen, and convicted them under sec. 411, I.P.C, and sentenced them as noted above. The convictions and sentences have been confirmed on appeal by the Sessions Judge of Tipperah on the 25th September, 1905, on all the accused except Abdul Aziz and oh the 2nd November the petitioner Abdul Majid obtained a Rule from this Court on the District Magistrate of Tipperah to show cause why the conviction and sentence passed on him should not be-set aside and he should not be retried. The ground on which the Rule was granted appears to have been that the trial of the petitioner jointly with the other accused persons was illegal, as they were not accused of Having committed the same offences but of different offences in respect of different articles committed at different times and not forming part of the same transaction. The trial was, therefore, in contravention of the provisions of see. 233, Cr. P.C and the case did not fall within the provisions of sees. 235 or 239, Cr. P.C It does not appear to have been even suggested seriously that the accused were prejudiced by being tried tpgether, but on the authority of the decision of the Privy Council in the case of Subrahmania Ayyar v. The King-Emperor (1) it has been contended that the trial was illegal, and that there was not such an irregularity only in the trial as might be remedied by the provisions of section 537, Cr. P.C

14. Now in this case it is clear that applying to the facts the presumption permissible in accordance with the provisions of sec. 114 of the Evidence Act, the trying Magistrate might as well have found all the accused guilty of having committed the theft or burglary as of having dishonestly received the goods knowing them to be stolen property. And under those circumstances no possible objection could have been raised to the legality of., trying all the accused at one trial. The question then is whether in a case like the present, we should, On the authority of the decision of the Privy Council, previously, referred to, hold that the trial was illegal. It may be observed that, in the case of In re David (2) this Court in 1880 Held that the thief and the receiver of property stolen at that theft may be tried together under the provisions of sec. 239, Cr. P.C and this, I may observe, has been the common practice in the Courts in this Province both before and after that decision.

15. The real question then is whether the theft of property and the receipt of the stolen property, or, of different articles of the stolen property from the thief do in fact form, part of the same transaction. There seems to be no reason why they should not be, and good reason why they should be so considered. Thefts are generally committed not so much for the property as for what the property can be sold for, and persons engaged in the theft as well as those engaged in the purchase or dishonest receipt of the property are all engaged at different stages in what amounts to the same transaction. In the present case if the evidence be believed the petitioner was acting in concert with the thieves, and the other accused appear to have been either the thieves themselves or persons intimately connected with them. There is no suggestion that in order to prove the honest receipt of any of the property any of the accused desired to rely on the evidence of any other accused, or that the joint trial in any way prejudiced any one of them in their defence.

16. No evidence was offered to prove that the dishonest receipt of the ciifferent articles found in the possession of the different accused had been taken in different times. The offence with which they were charged was dishonest retention of the different stolen articles at the same time. And as all were proved in dishonest possession of stolen property at the same time and as all failed to account for its possession the presumption appears to be reasonable that they all received the various articles when the stolen property was divided or as participators in the same transaction, that transaction being the taking of the property out of the possession of the complainant and the illegal gain to be acquired thereby. With all deference to the learned Judges who decided the case of In The Matter Of Bishnu Banwar… v. The Empress…Opposite Party. (3), I am unable to hold that the fact that the theft and dishonest receipt were simultaneous or almost simultaneous, can be accepted as affording a sound principle for determining whether the theft and dishonest receipt formed one transaction. If the property were handed immediately after the theft was committed to a person who was present at the time to receive it, that person would seem to be in the position rather of an abetter of the theft and punishable for the substantive offence. If, however, the property were taken at once to the house of the receiver and there handed over to and received by him dishonestly, the act of the commission of the theft and the act of receipt of the stolen property would seem to be as distinct as if the stolen property had been received a day, or a month or six months after the theft. In principle, there cannot, in my opinion, be any distinction, the lapse of time between the theft and receipt affording none. It is only because the theft and the receipt form part of one transaction that the thief and the dishonest receiver can be tried together at one trial.

17. I may observe that under the Statute law in England the thief and the receiver may be indicted jointly and tried together at the same trial, and, in my opinion, the principle underlying the Statute is that the theft, and dishonest receipt are in fact regarded as part of the same transaction.

18. The separate trial of the thief and the receiver would involve in most cases a waste of the time of the Court without any compensating benefit to the accused or to any body. It is only in exceptional cases where the alleged receiver may be prejudiced in his defence by being tried with the thief that it is at the discretion of the Court to try each separately at a separate trial. In my opinion, therefore, the present case is distinguishable from the case of Subrahmania Ayyar v. The King-Emperor (), and as I hold there was no illegality in the trial, I would discharge the Rule.

19. As, however, my learned colleague Mr. Justice Stephen differs in opinion from me, the case must, in accordance with the provisions of section 439, Criminal Procedure Code, be referred to the Hon'ble the Chief Justice to be dealt with under the provisions of section 429, Criminal Procedure Code.

Stephen, J.:— I need not recapitulate the facts of this case which are fully set out in the judgment of my learned brother. It is enough to state that Abdul Majid, the petitioner, was tried with four other persons under sec. 411 of the I.P Code, each of the five being charged separately with retaining stolen property and each being charged in respect of a different object. On the evidence there seems no reason to doubt that the articles retained by all the prisoners were stolen on the same occasion. The question is whether on these charges, the joint trial of the five accused was contrary to law, and if it was, whether the fact makes the conviction of the petitioner illegal. It seems to me impossible not to answer both these questions in the affirmative. Omitting cases of attempts and abetments, of which there is no question here, the effect of sec. 239 of the Cr. P. Code is that two or more persons can be tried together only when they are accused of the same offence, or of different offences in the same transaction. Here they are specifically charged with different offences, namely, retaining different things. The only reason for saying that they are charged with the same offence appears to be that the retention of the article in each case, might, on proof that it was stolen, and in the absence of any explanation of how it came into the possession of the accused, afford ground for convicting the accused of theft, and if this were so, each of the accused would be convicted of the same theft. I know of no authority, however, for saying that a conviction for theft can take place on a charge of receiving or retaining. Sec. 237 allows an accused who has been charged with one offence to be convicted of another; but by reference to sec. 236, the operation of that section is confined to cases where it is doubtful which of several offences will be constituted by the facts which can be proved, which is not at all the case here. I hold, therefore, that the persons charged were not accused of the same offence. The question then arises were they accused of different offences committed in the same transaction. It is to be noticed that the four of them, whose charges alone are before us, were charged with retaining only, and not, as they might have been, with retaining and receiving. It may be, however, that in this case this makes no difference, because an illegal receiving may be presumed from an illegal retention. Taking this to be so, and that we are to consider retaining to be the same thing as receiving, it appears from the case of A. David () that where one prisoner stole and another received, they commitfed different offences in the same transaction; but this, subject to the qualification mentioned in Bishun Banvar v. The Empress (), that the offence of receiving must have been committed simultaneously with, which must mean very soon after, that of stealing. In the present case there is no evidence as to the circumstances under which the receiving took place; it may have taken place several days after the theft; the property may even have passed through several hands before it came into the possession of the accused. It is, therefore, impossible to hold that the offence of receiving by the petitioner and the offence of stealing by the unknown thief were offences committed in the same transaction within the meaning of sec. 239. Still less, as it seems to me, can it be held that the offences of the different accused were so connected. Consequently it follows that the joint trial of the accused was not according to law.

20. The further question then arises whether the conviction and sentence are saved by the operation of section 537 of the Criminal Procedure Code; and it appears to me that the decision in Subvahmania Ayyar v. The King Emperor () is authority for saying that they are not. An illegal joinder of charges against one accused is an illegality not curable under section 537. An illegal joinder of charges against several accused seems to me a fortori an illegality of the same kind. The prejudice and inconveniences which may result from misjoinder of accused persons are of the same kind as those to be apprehended on an illegal joinder of charges against one accused; only they are more serious in degree. There is here no question of whether the accused have actually been prejudiced by being tried together. The question is whether the rule that has been broken is such that its breach in other cases is likely to prejudice accused and to produce evils such as those referred to in the judgment of the Privy Council. In my opinion it is, and I am consequently of opinion that the Rule should be made absolute, the conviction and sentence set aside and the petitioner discharged.

21. Rule made absolute, conviction set aside.