1. This is a reference by the Sessions Judge of Budaun. The accused persons were tried jointly for offences under Sections 379, 147 and 325 read with Section 149 of the Indian Penal Code. They were convicted by the Trying Magistrate and their convictions were upheld by the Appellate Court.
2. An application for revision was presented on behalf of the accused persons to the Court of the Sessions Judge, and the legality of the joint trial was questioned.
3. The facts as found so far are that Sharfuddin and Nanhe accused were detected while stealing the crop of the complainant Chiddu Chamar, who objected to the theft and was compelled to run away to his house. After this Sharfuddin and Nanhe hearing that the complainant intended to go to the Police Station to make a report, went along with the other persons to the complainant's chaupal and there caused hurt to Chiddu, and grievous hurt to his father Nanhe. The two offences were obviously quite distinct and separate, and there was also an interval of time between their commission. By no stretch of language can it be said that these offences were of the same time, nor can it be said that they were so connected together as to form the same transaction.
4. In this view of the matter I agree with the learned Sessions Judge that a joint trial was illegal. It was held by their Lordships of the Privy Council in the case reported as Subrahmania Ayyar v. Emperor 25 M. 61 : 11 M.L.J. 233 : 3 Bom. L.R. 540 : 28 I.A. 257 : 5 C.W.N. 866 : 2 weir 271 : 8 Bar. P.C.J. 160 (P.C.) that such non-compliance with the provisions of Section 233 of the Code of Criminal Procedure wras not merely an irregularity but an illegality.
5. The accused were not satisfied with the joint trial and themselves asked the learned Sessions Judge to set aside the orders on the ground of the illegality of the joint trial.
6. I accept the reference, and set aside the convictions of the accused persons, and direct that the accused be tried de novo of the offences charged, and the offence of theft be tried separately from that falling under Sections 147, 325 and 149. The District Magistrate will send the case to another Magistrate for trial.
7. Let the record the returned.