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cant were withdrawn and he was acquitted.

He has now been prosecuted and convicted under sec. 176, I. P. C,
on the same facts. The Sessions Judge confirmed the conviction and
sentence and a rule was issued calling on the District Magistrate of
Dibrugarh to show cause why the conviction of, and sentence passed upon,
the applicant Sharbekhan Gohain should not be set aside on the ground
that the offence of which he ha« been convicted could not be charged
against him according to sec. 403, Cr. P. 0.

No explanation has been sent in.

The second prosecution appears to us to be Imrre^l under sec. 403,
Cr. P-C.

According to sul>-sec. (1) of that section, a person who Imus once been
tried for an offence and acquitted of such offence shall not be liable to be
tried again for tlie same offence nor on the same facts for any other offfence
for which a different charge from the one made against him might have
been made under sec. 234>, or for which he might have been convicted
under sec. 237. And the 2nd sub-section says : A person acquitted or
convicted of any offence may be tried of any distinct offence for which a
separate charge might have been made againtjt him on the former trial
under sec. 235, sub-sec. (1).

Now this case does not appear to us to come under sec. 235, sub-sec.
(1) ; because the offence of which he has now been convicted is baf^ed on
the very same facts on which the previous charge under sec. 202 was
based. The case comes rather under the 2nd sub-section of sec. 235 which
lays down that if the acts alleged constitute an offence fallinj^ within two
or more separate definitions of any law in force for the time being by
which offences are defined or punished, the person accused of them may
be charged with, and tried at ope trial for, each of such offences. This

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390 The Criminal Law Journal Reports. [Vol. HI


charge nndor sec. 17(k T. P. (A, might have l)eon made at the former trial
on the very same facts.

It does not therefore come within sub-sec. (2) of sec. 403, Cr. P. C,
and is not tlierefore excluded from the operation of sub-sec. (1) of that
section. It does not come within the provisions of sub-sec. (4), for the
Sessions Court which tried him under sec. 202, I. P. C, was competent
to try him under sec. 176.

We think, therefore, that the second trial Ls barred under se6. 403^.
Accordingly we make the rule absolute, set aside the conviction and sen-
tence and direct that the fine, if paid, be refunded.

jivle made ahfolttte.

(10 C. TV. .v., 644.J


June 7 [CRIMINAL REVISION No. 320 of 1905.] 1905.

Present : — Mr. Justice Pargiter and Mr. Justice WoodroflPe.

AMJAD ALI, — Complainant, — Petitioner,


ASHRAF ALI and others, — ^Accused, — Opposite Party.

Criminal Procedure Code (Act V of 1898)^ %. 250^Contpeiuativn, order for — BeasoM.

A Magistrate BhouUl gire reasons for awarding compen^f^tion, under 8. 250, Cr. P. C.

Where a Magistrate's judgment did not contain any statement of the facts of the case, nor
any criticism of the incident* involved in it, and nor any reasons why the case was considered
to be vexatious, tlie High Court set aside the order awarding compensation to the accused.

The facts of the case material to this report will appear from the

Bahu Kixrunamoji Base and Monmotha JS^ath Mukerjee for the Peti-

No one for the Opposite party.

The Judgment of the Court was as follows : —

This applicant was ordered under sec. 250, (k. P. C, to pay com-
pensation to a person against whom he had brought a criminal charge.

A rule was issued calling on the District Magistrate to show cause
why this order for compensation should not be set aside on the ground
that the Magistrate in making it has not given reasons for awarding such

The Joint Magistrate who made the order has sent in an explanation
in which he says that his reasons are given in the judgment and order-
shwt and that he does pot wish to add anything more,

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Vol. Ill] Thb Criminal Law Journal R ^ pouts. 391


We have examined his jndgment and his order-sheet and all we find
is this. He says that the prosecution evidence is highly unsatisfactory.
He then deals with an application by the prosecution for an adjournment
and decides against it. Then he says upon the evidence and the written
statements and documents he has no hesitation in saying that — ^the present
is a vexatious case and accordingly called on the applicant to show cause
why he should not pay compensation.

After the application to the Sessions Judge the Joint Magistrate was
ordered to take further evidence, and in his order he says briefly he sees
no reason for changing his opinion. The new witnesses did not alter his
former conclusions.

We do not find ia his judgment any statement of the facts of the case
—no criticism of the incidents involved in it, no reasons why he thinks
the case is vexatious. The ground, therefore, on which the rule was
issued, remains valid.

Accordingly, we make the rule absolute, set aside the order and
direct that the compensation, if paid, be refunded.

Rule made ahsohtte.

(3 C. L. J., 412.)


March 2 [CRIMINAL REVISION No. 1050 of 1905.] 190r,.

Present : — Mr. Justice Harington, Mr. Justice Brett and
Mr. Justice Stephen.


Crimiml Pi\icedHre Code (Act V of 1898), $cc*. 233, 239 and 537— Indian Penal a*dr
(AH XLV of I860), sec, 41t— Separate retainers hy tcparate persons at different 2tlaces^
Joint trial — Illegality and not mere irregularity.

Per Harington and Steptven, JJ. (Brett J. «?o«//-a;,— Separate retainers by seimrate
persons, of separate articles, at different places, although the articles may have been the pro-
ceeds of one dacoity, cannot be said to be in the course of the same transaction. Persons
charged with such retention cannot be tried jointly. Sec. 637 of the Criminal Procedure Code
does not apply to such a case.

Application for reviwon of an order passed hy the Sessions Judge
affirming the conviction and sentence under sec. 411, Indian Penal Code,
passed upon the petitioner by the Deputy Magistrate.

The Rule was issued by Woodroffe and Mookerjee JJ., and was heard
by Brett and Stephen J J., who haWng disagreed, the matter was referred
to Harington J.

Babus Sharat Chandra Roy Choicdhmj and Upendra Lai Gupta Roy
for the Petitioner,

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392 Tfli: Crimuiai. Law JouRKAt RitPOBts. [Vol, in


Bahu Srhlt Chandra Chowdhmj for the ('rown.

Tho following judgments were delivered hv tlie Ooart :—

Harhfftou, ./.—In tins a Rule has been granted calling upon the Dis-
trict 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 tho
ground argued is that the joint trial of the petitioner and the other
prisoners was illegal under section 233 of the Code of Criminal Pro-

On the Rule coming up for hearing tho learned Judges of the
Criminal Bench differed in opinion. The case has accordingly been re-
argued before me.

The petitioner, AImIuI Majid, was tried with Sayad AH, Safar Ali»
A))dul Aziz and Umedanessa : the charge against him was " That you on
or about the 19th day of July 1905 at Muradpur in Comilla town dis-
honestly did retain stolen property, to wit, one silk sari and one Benares
sari^ the property of (^handra Kumar Dutta knowing or having reason io
believe the same to 1)0 stolen property and thereby committed an oflEence
under section 411 of the Indian Penal Code — the charge against Abdul
Aziz was in the same terms omitting the words " one silk san " — ^that
against Sayad Ali w^as similarly framed, but charged the dishonest retainer
as being at Bhat Koshar in Thannah Kotwali ; and the property retained,
one mirror, the property of Chandra Kumar Dutta, and one waistcoat, the
property of Binode Chandra Sen.

Safar Ali was similarly charged with dishonestly retaining a san the
l)roperty of Chandra Kumar Dutta at Tetara in Thannah Kotawali : —
Umedanessa with dishonestly retaining possession of one i/ram, tho pro-
perty of Chandra Kumar Dutta at Sabhapur in Commilla town. All the
prisoners were convicted : Abdul Majid, Sayad Ali and Safar Ali, were
sentenced under section 411, Indian Penal Code, to 18 nionths' 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.

Tlie property which the various prisoners were charged with retain-
ing was all the proceeds of one burglary which was committed at the
house of ('handra Kumar Dutta on the night of the 4th of June. Abdul
Majid prisoner and another man offered to recover tho 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 robberv.

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Vol. Ill] ThR €MlflHAl4 liAW JOUBNAL JftsPOMS. 393


As they failed either to resttoro the property or to cateh the thiovefi;
information was given to tlie police. On July 19th the hou«e« of the
prisoners were searched, and the various articles which they are charged
with having dishonestly retained woih? fonnd in the different lu)ttses, and
were identified by the prosecutor as his.

In siipport 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 Azias) is charged with having dishonestly retained property different
from that retained by AMul 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 ea?*e 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 transactbn are, (a)^ that the stolen property
was the proceeds of one theft, (h) 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 not prejudiced by being jointly tried on the several clmrges of
retaining the different stolen articles and that, therefore, if the trial is not
in accordance with section 239, section 537 would apply.

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

Prima fade it is illegal to try at one trial a charge against Abdul
Majid of dishonestly retaining at Muradpur a silk sari l)elonging to
Chandra Kumar Dutta and a charge against Sayad Ali of dishonestly
retaining at Bhat Keshwari in Thannah Kotwali a mirror l)elonging to
Chandra Kumar Dutta, and a waist-coat belonging to Binade Chandra Sen.
It Ui one offence, if one person retains a stolen s€tri at one plaee, 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
eharg«d with retaining the whole : bmt that is not the case. They are not
oWgad with retaining the whole, but each prisoner is charged with a

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394 The Crimin.u. Law Joubnal Kepohts. [V<J. Ill


separate offence and each offence most, under section 23S, be tried

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. Thig
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 petitidner cannot
liavo 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 presump-
tion 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 C4ise
he could have called the other prisoners as witnesses if he so desired.

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 AH,
and Safar Ali, were sentenced under sec. 411, I. P. C, to rigorous im-
prisonment for 18 months each, Abdul Aziz was sentenced under the
same section to 9 months' rigorous imprisonment, and the fifth accused
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 Jun? 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 inquirj' had been made and no clue obtained to the offenders,
the case was reported as true, the offenders being not detected.

The complainant then proceeded to make enquiry himself tlirough his
servants and received information from Altab AH, one of his peons, that

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Vol. ni] The Cruhnai. Law Journal Report*. 395


Abinasli Doctor and the accu:ied 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. Com-
plainant paid the sum, and kept the tari. 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
Chondra 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
drutik, 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 foct paving over Rs. 12 to the accused Abdul Majid. No other
property was restored to complainant however, and on the 10th July con.-
plainant told a Sub-Insi»ector of Police, Rajani Babu, all that he had done
apparently thev laid a trap to catch the thieves and complainant _ pan
Rs 18 more 'to Abdul Majid and Abinash Doctor. The trap fa.le.l 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.

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 an'd all of the accused were in dishonest possession of it. Each
accused appears to have claimed the property as his own, but their evidence
wasdisbeSrved. The accused being then found in i>osses8ion of stolen
Zpertr hortly after the theft and having failed satisfactori y to explain
rw'lhep^^r^- came to cheir possession, the Deputy Magistrate dre.^
the presumpL^hich under sec. 114 of the E-^i-e Ac he was ^^^^^^^^^^^^^^
in dWthat e.eh and all of t.^ 7:^:^:^^ ^^^
^rr itirCand^^^^^^^^ t^m as noted above. The coiivic-

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306 The Criminal Law Journal Reports. [Vol. Ill


tions and sontenoos have boon confirmod on api>oal !>y the Sor^sions Judgo
of Tipporah on the 25th September, 1905, on all the accused except Abdul
Aziz and on the 2nd November the i)etitioner Al>dul Majid obtained a
Rule from this Court on the District Magistrate of Tipporah to show
cause why the conviction and sentence passed on him should not be . se<
aside and he should not be retried. The ground on which the Rule
was granted appears to liave been that the trial of the j>etitioner jointly
with the other accused persons was illegal, as they wei-e not accnsed of
having oonnnitted the same offences but of different offences in respect of
different articles committed at different times and not forming j^art of the
same transaction. The trial was, therefore, in contravention of the provir
sions of sec. 2H3, Cr. P. C!., and the case did not fall within the provisions
of sees. 235 or 239, Cr. P. (*. It does not api^ear to have been even
suggested seriously that the accused were prejudiced by being tried
together, but on the authority of the decision of the Privy Council in the
case of Suhrahmania Ai/r/ar v. The Ktng-Kmperor (1) it has been con-
tended that the trial was illegal, and that there was not such an irreguhrity
onlv in the trial as might be remedied by the jMrovisions of section 537,
Cr.P. C.

Now in this case it is clear that applying to the facts the presumption
i>ermissible in accordance with tlie provisions of sec. 114 of tlie Evidence
Act, the trj'ing Magistrate might as well liave found all the accused
guilty of having committed the theft or burglary as of having dishonestly
received the goods knowing them to Ijo 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 tlien 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 w^as 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 proi)erty stolen at that theft may be
tried together under the jirovisions of sec. 239, Cr. P. C, and this, I may
observe, has been the common practice in the Courts in this Province
l)oth l)efore and after that decision.

The real question then is whether the theft of property and the receipt
of the stolen property, or, of different articles of the stolen proi)erty 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 pro-
perty are all engaged at different stages in what amounts to the same

(1) (1001) 1, L. R. 25 Ma«l. fil. (2) (1880) 6 0. L. R. 245.

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Vol. Ill] tHfi CiiiMiNAL Law Journal IIepokts. 31>7


tninsaction. 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
witli them. There is no suggestion thjit in order to prove tlie honest
receipt oE 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.

No evidence was offered to prove that the dishonest receipt of the
different 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 i)roperty at the same
time and as all failed to account for its possession the presumption appears
to be reasonable that they all received tlic 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 accpiired thereby. With all de-
ference to the learned Judges who decided the case of Bishnu Banwar v.
Empress (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 pi*esent at the time to
receive it, that person would seem to be in the position rather of an abettor
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 the receipt of the stolen property would seem to be as
distinct as if the stolen property had Ix^en 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 l>etween the theft and receij)t affording
hone. It is only l>ecause the theft and the receipt form part of one tran-
saction that the thief and the dishonest receiver can be tried together at
one trial.

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.

The separate trial of the thief and the receiver would involve in most
cases a waste of the time of the Court without any comi>ensatiqg l)enefit to

(3) (1896) I C.W.N. 35..

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398 The Criminal Law Journal Reports. [Vol. lit


the accused or to any body. It is only in exceptional cases whore 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 Siibrahmania Ayyar v. The King Kmperor (1), and as I hold there
was no illegality in the trial, I would discharge the Rule.

As, however, my learned colleague Mr. Justice Stephen diflEers in
opinion from me, the case must, in accordance with the provisions of sec-

Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 71 of 91)