Leonard Stone, Kt., C.J.
1. This is a revisional application, with regard to the conviction and sentence of three years' rigorous imprisonment passed on the three accused, under Section 412 of the Indian Penal Code, by Mr. J.R. Nazareth, the Assistant Sessions Judge of Belgaum, on February 25, 1946. There was an appeal by the accused to Mr. Honavar, the learned Sessions Judge, which he dismissed on May 7, 1946. Accordingly, the matter comes before us in revision.
2. The principal point taken by Mr. Lokur on behalf of the accused is a submission made under Section 403 of the Criminal Procedure Code to the effect that the accused have been previously tried and acquitted in respect of the offence with which they are now charged. It must be said at once, that, this submission is only advanced on behalf of accused Nos. 1 and 3; because, accused No. 2 was not tried in Sessions Case No. 149 of 1943, which is the case craved in aid by accused Nos. 1 and 3. Section 403 of the Criminal Procedure Code provides:
(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237.
3. 'Offence' is defined by Section 4, Sub-section (o), as meaning, any act or omission made punishable by any law for the time being in force.
4. In Sessions Case No. 149 accused Nos. 1 and 3, with one other person, were charged with dacoity on or about April 30 at Munyal in the house of one Shiddeppa Muddeppa Vader, or, in the alternative:
That you all on or about the said date, dishonestly received or retained the stolen property to wit: Articles 4 to 15 belonging to the complainant (that is to say Shiddeppa) knowing or having reason to believe that the possession of the same had been transferred by the commission of dacoity and thereby committed an offence punishable under Section 412 of the Indian Penal Code and within the cognizance of this Court.
5. In the case under review by us, the accused are charged with three separate dacoities, on or about the night of April 30, 1943, or, alternatively, with having dishonestly received or retained stolen property on the dates and places mentioned against their respective names set out below, and by looking at the schedule, it will be found that against both accused Nos. 1 and 3 there are a larger number of articles than they were charged with having received in Sessions Case No. 149. The suggestion is that the onus is on the prosecution to show that they did not receive all those articles at one and the same time, with the articles with which they are charged with having received in Sessions Case No. 149 of 1943, because, it is submitted, that unless this is done, they could and should have been tried in respect of all these articles in the previous case, and, therefore, are entitled to the benefit of Section 403 of the Criminal Procedure Code.
6. A number of eases of other High Courts have been cited at the bar, but all these cases only deal with the act of receiving, and it is to be observed that the offence under Section 412 of the Indian Penal Code is this:
Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity... .shall be punished with transportation for life.
7. We do not think it necessary to say anything with regard to the 'receiving' of these articles, for it may well be that if all the articles in the case now under review were in fact received at one and the same time, as the twelve articles mentioned in Sessions Case No. 149 of 1943, we should have felt constrained to follow the cases cited, which have been decided in other High Courts. But in our opinion the question rests on the meaning of the word 'retains', for unlike the English statute which is Sub-section 33(1) of the Larceny Act, 1916, the offence is receiving or in the alternative retaining, whereas under the English Act the offence is only of receiving.
8. To retain any article of stolen property is a continuing offence, so that the acquittal in Sessions Case No. 149 of 1943 has not created any bar to the present proceedings in respect of a greater number of articles than is mentioned in the former. Accordingly in our opinion this submission fails.
9. But Mr. Lokur has also raised the point that in the appellate Court the learned Judge took the view, that,
Where a trial has been by a jury, the appeal shall He only on a matter of law as laid down by Section 418(1) of the Code of Criminal Procedure. The learned pleader for the appellants has, therefore, not argued the several points of misdirection or non-direction on the evidence.
The Government Pleader concedes, that this view of the law is erroneous in view of Section 423(2), which provides that
Nothing herein contained shall authorise the Court to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him.
10. The case accordingly must go back to the Sessions Court for being re-heard on the question of non-direction and misdirection, and be there disposed of according to law.