H. Deka, J.
1. This is an application under Section 185 of the Criminal P. C. for relevant order as provided under that section. Sub-section (2) of Section 185 which is relevant to this case runs as follows:
'Where two or more Courts not subordinate to the same High Court have taken cognizance of the same offence, the High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced may direct the trial of such offender to be held in any Court subordinate to it, & if it so decides all other proceedings against such person in respect of such offence shall be discontinued. If such High Court, upon the matter having been brought to its notice, does not so decide, any other High Court, within the local limits of whose 'appellate criminal jurisdiction such proceedings are pending, may give a like direction, and upon its so doing all other such proceedings shall be discontinued.'
2. The facts as appear from the petition made in this Court on behalf of the State Government of Assam and the counter-affidavit Bled on behalf of the opposite parties, are that one Bhagwan Das--a handloom weaver of Silchar town in the district of Cachar lodged a 1st Information Report on 31-1-1957 at the Silchar Police Station alleging that the opposite parties Ramchand and Jiwandas had dishonestly removed from his possession on the night of 25-1-1957 cash and handloom cloths worth about Rs. 1049/- and the police started investigation on the basis of this report.
The police found in the course of the investigation that the two opposite parties who were alleged to have committed the theft has already left for their native village at Panipat in the district of Karnal, in East Punjab. The Silchar police took steps to have the accused persons arrested in their native village through the assistance of the Sub-Divisional Officer of Panipat and have their houses searched by the police. On recovery of certain articles in the possession of these accused, the accused persons were sent up by the local police for trial at Panipat under Section 411, Indian Penal Code for possessing articles which were alleged to be the subject matter of theft committed at Silchar.
On 18-5-1957, the Silchar police submitted a charge-sheet against both the accused-opposite parties for trial under Section 380, Indian Penal Code in reference to the theft in the house of Bhagaban Das, and the Additional District Magistrate at Silchar took cognizance of the case and G. R. Case No. 106/57 of that court was registered on the basis of the police charge-sheet of 18-5-1957. The Additional District Magistrate then requested the Sub-Divisional Officer of Panioat to forward the accused persons to Silchar court with the articles seized from their possession and the letter was dated 14-8-1957.
In reply to that letter, the Sub-Divisional Officer of Panipat wrote to the Additional District Magistrate at Silchar that the accused persons were to be tried in the Karnal district and they could not be sent to Silchar as desired, and accordingly he returned the warrant of arrest unserved.
In this letter, the learned Sub-Divisional Officer referred to a memorandum of the District Magistrate at Karnal bearing No. 4689/P alleged to be dated 19-8-1957; but from a copy of this memorandum, which has been annexed to the petition, it appears that the letter was written on 17-8-1957 by the District Magistrate of Karnal to the District Magistrate at Cachar, Silchar and there the relevant passage was :
'the accused Ram Chand is being prosecuted under Section 411, Indian Penal Code in a court at Panipat (District Karnal) and the result of the trial will be communicated to you in due course. Ram Chand cannot, therefore, be sent to Silchar, till the case pending against him here is decided.'
In that letter, evidently there is no mention of the other accused--Jiban Das--though in the Sub-Divisional Officer's letter of 20-8-1957, it is stated that the ''accused are being tried' i.e., in the plural and the copy of the order-sheet of the same date discloses that the accused Jibandas was also being tried along with Ramchand.
Therefore, it remains as a fact that the theft took place in the district of Cachar within the jurisdiction of the Silchar court and some articles are alleged to have been recovered from the possession of the accused persons at village Panipat within the jurisdiction of the Panipat Court in the district of Karnal, the two charges,--namely one under Section 380, Indian Penal Code and the other under Section 411 Indian Penal Code relate to the same offence,--namely the alleged commission of the theft in the house of Bhagawandas on 25-1-1957.
3. The case of the State Government is that the offence having taken place here and investigation already begun (now completed),--it is in the interest of justice and. balance of convenience that the case should be tried in the court at Silchar and not in the district of Karnal which is a far off place and it is submitted that a trial under Section 411, Indian Penal Code may be unnecessary if there is a conviction under Section 380, Indian Penal Code of which there is every possibility.
4. It seems that strenuous efforts are being made on behalf of the accused to have the trial under Section 411, Indian Penal Code held at Panipat Court rather than the case under Section 380, Indian Penal Code should begin in the Silchar Court. The attitude taken by the learned Sub-Divisional Officer at Panipat or the District Magistrate at Karnal is also difficult to understand.
It is patent that there can be no conviction under Section 411, Indian Penal Code, unless it is proved that a theft had actually taken place and the articles recovered from the possession of the accused could be referred to that theft. In other words, a trial under Section 411, Indian Penal Code has no independent existence. Under Section 411, Indian Penal Code the maximum sentence is 3 years where as under Section 380, Indian Penal Code the maximum sentence is 7 years' rigorous imprisonment which would signify that the offence under Section 380, Indian Penal Code is a graver offence.
In case, the case under Section 380, Indian Penal Code or the theft is not established, there will be no scope for a trial under Section 411, Indian Penal Code at all. Therefore, to my mind, the trial under Section 380 Indian Penal Code should get priority which is the subject-matter of the charge in the trial started against the accused in the Silchar court.
5. Mr. Dam appearing for the accused persons has opposed this application mainly on the ground that the Panipat court had taken cognizance of the offence earlier than the Silchar court and relied on the counter-affidavit filed on behalf of the accused persons, wherein it is stated that the case under Section 411, Indian Penal Code was started in the court of the Sub-Divisional Officer at Panipat on 16-4-1957 whereas cognizance was taken by the Silchar court on 18-5-1957. Mr. Dam however has not produced any Order-sheet of the case before me and has argued that the same thing had been stated in a petition moved by the complainant under Article 226 of the Constitution before the East Punjab High Court.
He has further argued that it is not the same offence for which the opposite parties are being tried in the court at Silchar and in the court of Panipat,--one being a case under Section 380 Indian Penal Code and the other being a case under Section 411 Indian Penal Code. He drew my attention to Sub-section (2) of Section 234 Criminal Procedure to interprete what is 'offence of the same kind'. I do not think that section has any application to this case. In regard to his other point, I might say that the alleged offence is one under Section 380 and not under Section 411 Indian Penal Code which might form a part of the ingredients of Section 380 Indian Penal Code.
There has been no cognizance taken of an offence under Section 380 Indian Penal Code by the Panipat court as yet in regard to the occurrence and it having been taken by the Silchar court, in my opinion, Silchar court should be permitted to proceed with the G. R. Case No. 106/57 and the hands of the Panipat court should be stayed under Section 185 (2), Criminal Procedure Code.
I consider it unnecessary to deal with the argument of Mr. Medhi for the State as to what will amount taking cognizance and whether the police investigation might be said to be a proceeding within the scope of Section 185 Criminal Procedure Code. In my view, the offence is one under Section 380 Indian Penal Code and the case being registered and the investigation started earlier within the jurisdiction of this Court, I direct under Section 185 (2) Criminal Procedure Code that the trial of the accused persons should continue in the District Magistrate's court at Silchar by any competent Magistrate and the proceedings against these persons in the Panipat court be discontinued.
It is necessary for the ends of justice that the district authorities of Karnal should co-operate in bringing the accused to trial and they will, in the meantime, take steps to forward the articles recovered from the possession of the accused and help in the matter of taking steps for the arrest if needs be or forward the accused persons for trial in the Silchar court.
6. The rule is made absolute accordingly.