1. (His Lordship first narrated the facts of the case and then continued). The case, in point of fact, falls within the decision of this Court in Emperor v. Krishnaji Dange 34 Bom. L.R. 590 : 138 Ind. Cas. 520 : A.I.R. 1932 Bom. 277 : (1932) Cr. Cas. 389 : 33 Cri.L.J 619 : Ind. Rul. (1932) Bom. 383, which shows that there was an improper joinder of charges, and that the trial was, therefore, illegal. The learned Judge thereupon came to the conclusion that he would not pursue the suggestion for a reference and he acquitted accused Nos.1 to 5 so that by two different orders he aquitted all the accused.
2. It is in my view clear that as the whole trial was illegal, the learned Judge could neither convict nor acquit, and we are bound to set, aside the orders of acquittal. The only substantial question is whether wought to direct the accused to be re-tried. Now as accused Nos. 6 to 10 have been acquitted by the verdict of the jury and the Judge was prepared to accept that verdict, it certainly would be very hard on them that they should be re-tried because the original trial was defective entirely through the fault of the prosecuting authority in joining charges improperly. Certainly I should not be prepared to order that those accused be re-tried. In the case of accused Nos. 1 to 5, no doubt the learned Judge disagreed with the verdict of the jury, and there is a stronger case in regard to them for directing a new trial.
3. But on the whole, I am not prepared to adopt that course. The accused have been in jail as under-trial prisoners altogether for about six months, and as I have already observed, the defect in the proceedings was due to the mistake of the advisers of the Crown. It would 1 think be very difficult in a new trial to persuade another jury to decree with the verdict of the old jury when they hear the history of the case and the length of time during which 'the accused have been in jail. I think that we ought not to direct a new trial. At the same time that does not in my opinion mean that there cannot be a new trial. The case is not' one falling under Section 308, Criminal Procedure Code. 1 know of no power in this Court to forbid the authority charged with the initiation prosecutions from prosecuting these accused for an offence for which they have never been effectively tried. It may be that the authority may have information about the accused, which is not in our possession All we do is to say that on the materials before us we are not prepared to direct that any of the accused should be re-tried but at the same time we set aside the orders of acquittal. As we do not direct a re-trial, the accused who have been arrested under Section 427 must be released.