1. The facts alleged against the accused are that at night they forcibly entered the house of a deceased person and removed his property with the dishonest intention of depriving the complainant's sister and her son of the share to which they were entitled under the Muhammadan law. The house, it is stated, was being guarded by watchmen, some of whom were sent by the complainant's sister, while others had been appointed by the first and second accused on behalf of their daughters, who are admittedly entitled to a share.
2. The original charge was one of dacoity. The Deputy Magistrate split it up and convicted the accused of rioting, using criminal force, and misappropriating the property of a deceased person. In appeal the Sessions Court reversed this conviction, holding that the offence committed, if any amounted to dacoity, but that, the facts being incredible, there was no occasion to order a committal.
3. The complainant thereupon lodged a fresh charge of dacoity before another Deputy Magistrate, and, after consideration of Section 403 of the Criminal Procedure Code, the Deputy Magistrate issued fresh processes to arrest the accused. The Sessions Judge has now referred the case as he considers these proceedings illegal.
4. In the argument two questions have been raised--(l) Whether the Sessions Court's judgment is a bar to further proceedings on the same facts; (2) whether on the facts alleged there was any theft, which is an essential ingredient in the offence of dacoity. On the first point, Section 403, Clause 4, and illustration (g) seem to us conclusive. There has been no discharge of the accused on a charge of dacoity, and such a charge is triable by jury.
5. The Magistrate will of course give due weight to the observations of the Sessions Court in determining whether the case should be committed or not, but there is no bar to an inquiry into the charge of dacoity; on the second point, assuming that there was a possession, even jointly with the accused, by the prosecutor, and that the accused removed the property dishonestly within the meaning of that term in the Penal Code, the removal would constitute theft.
6. We decline to interfere.