Ghose and Rampini, JJ.:— After stating the facts, delivered the following judgment:—
We have heard the learned counsel for Petitioner and we agree with him in thinking that the Magistrate was wrong in law to have tried Bishnu Banwar jointly with Maula Baksh, Khoda Baksh, and Ramztn.
The Petitioner was charged, as already mentioned, with the offence of dishonestly receiving stolen property and in regard to such an offence, we think, that having regard to the provisions of Sec. 233 and Sec. 239, Code of Criminal Procedure, he could not have been jointly tried with the three other accused, who were charged with the offence of theft. The Magistrate in his judgment seems to hold that the two offences with which the Petitioner and the other three accused were charged were committed in the same transaction, and therefore a joint trial was authorized. We are, however, of a different opinion. The offence of dishonestly receiving stolen property from a person who has stolen that property cannot be regarded as an offence committed in the same transaction as the theft itself, unless it be in a case where simultaneously with the offence of theft the offence of receiving stolen property is committed; bub that does not appear to have been the we here. The Magistrate in his Judgment refers to the case In the matter of A. David, but having regard to the facts upon which the law was there laid down, we do not think it is applicable in the present case.
The learned counsel for the Petitioner has suggested that when we are of opinion that the trial was bid in law, we ought direct that the Petitioner be discharged altogether, and in support of his argument he has referred to the errors, which the Magistrate has committed in using certain statements of the co-accused as evidence against the Petitioner; but we do not think having regard to the facts of this particular case, that it would be right and proper to accede to the suggestion that has been made to us by the learned counsel. We think the proper order to make in this case is to direct that the conviction and sentence be set aside and a new trial ordered.
If upon trial the accused be found quality, the Magistrate may, if he thinks right, take into consideration the period of imprisonment that the Petitioner has already undergone.