Richardson and Shams-ul-Huda, JJ.
1. The two petitioners, Ohi Bhusan Adhikari and Ramanath Dey, were assistants in a cloth shop. The case for the prosecution is that they misappropriated cloth, belonging to their employer. They were tried along with two other persons, Ram Gopal and Kali Narain. It was alleged that Kali Narain had dishonestly received stolen cloth sent to him by Ohi Bhusan, and that Ram Gopal had dishonestly received stolen cloth sent to him by Ramanath. No charge of conspiracy was framed against the four men. The petitioners were charged under Section 408 of the Penal Code with the offence of criminal breach of trust by a clerk or servant. Kali Narain was charged with abetting the commission of that offence by Ohi Bhusan, and Ram Gopal with abetting its commission by Ramanath. The trial ended in the conviction of all, the accused on the charges framed against them.
2. The case then came before the Sessions Judge on appeal. The learned Sessions Judge very properly observed that that there was no charge of conspiracy. He further held that if Kali Narain and Ram Gopal had committed any offence, it was the offence of dishonestly receiving stolen property and that their conviction for abetment could not be supported. So far as they were concerned he held that the trial was bad for misjoinder of charges, and on that ground he acquitted them.
3. As to the petitioners, the Sessions Judge found that they had acted in concert, and he upheld their convictions under Section 408.
4. The petitioners obtained this Rule on two grounds: first, on the ground that the joint trial of the four accused persons was illegal; and, secondly, on the ground that certain statements made by Ramanath have been wrongly treated as confessions and wrongly admitted in evidence.
5. We are of opinion that the Rule must be made absolute on the first ground, and that being so, it will not be necessary for us to deal with the second ground.
6. It seems clear that if there was a misjoinder of charges, it affected the legality of the whole trial. The trial, in view of the point which arises, cannot be a bad trial of Kali Narain and Ram Gopal and a good trial of the petitioners.
7. The whole question is whether the offences charged were committed in the course of the same transaction within the meaning of Section 239 of the Criminal Procedure Code. In this Court judicial opinion is in favour of the view that where property is stolen, and the proceeds of the theft are separately received at different times by different persons, these persons cannot be tried together: Abdul Majid v. Emperor (1906) I.L.R. 33 Calc. 1256. It has also been held that when goods are stolen and subsequently received by a receiver, it will depend on the circumstances whether the theft and the receipt are parts of one and the same transaction, so that the thief and the receiver can be tried together: see Bishnu Banwar v. Empress (1896) 1 C.W.N. 35.
8. In the present case if the offences charged against Kali Narain and Ram Copal were not committed in the same transaction, those offences and the offences charged against the petitioners cannot all have been committed in the same transaction.
9. The result is that the conviction of the petitioners and the sentences passed on them must be set aside. The petitioners will be released from their bail bonds.
10. It will be open to the proper authority, if so advised, to institute further proceedings against the petitioners.