1. This rule is directed against the petitioner's conviction tinder Section 54-A, Calcutta Police Act. The police charged him and other persons under Sections 407, 411 and 414, I.P.C. There was also a charge against him under the section just mentioned. An Honorary Presidency Magistrate tried these persons on 3rd May last and on that date recorded an order:
There is no good evidence against the accused. They are discharged under Section 253, Criminal P.C.
2. It appears that the petitioner was then again placed before the Honorary Magistrate to be tried for the offence under Section 54-A, whereupon the Magistrate made the following order
Put up before the Chief Presidency Magistrate. I do not wish to try this case as I have tried the connected case and this may be sent to some other Magistrate.
3. On this Mr. Wajid Ali, exercising apparently the powers of the Chief Presidency Magistrate, recorded the order 'To my file' and adjourned the hearing to 16th May. On that date the petitioner appears to have raised an objection to his trial but the hearing was further adjourned to 29th May when a written petition was put in on his behalf claiming that he had already been acquitted of the charge on which he was then being tried. The Magistrate's order on this was
Filed. I think the case under Section 54-A, Act 4, 1866 may proceed
and proceed it did and resulted in the conviction which is the subject of this rule. It is not clear from an examination of the record whether it was intended to exclude the charge under Section 54-A from the first trial; any way, the Honorary Magistrate, by speaking of it as a 'connected case,' seems to have been under the impression that this charge had not been before him, an impression which resulted, I suppose, from the charge not having been pressed at the trial.
4. We think that in the present case, when the goods which formed the subject of the charge under Ch. 17, I.P.C., and of a charge under Section 54-A, Calcutta Police Act, were identical, the petitioner should have been tried for all these offences at one trial and should not have been subjected to two trials in respect to his possession of the same goods. We are of opinion that for this reason the second trial was bad and that the conviction in it must be set aside.
5. The rule is accordingly made absolute. The goods if still in existence, will be returned to the petitioner. The petitioner will be discharged from bail.
6. I agree.