1. This rule was issued calling upon the Chief Presidency Magistrate to show cause why the conviction of the petitioner under Section 414, I.P.C. and the sentence of six months' rigorous imprisonment passed on him should not be set aside on the ground that the joint trial of the petitioner along with one Lalifc Mohan Khan was illegal and had caused considerable prejudice to the petitioner. The facts are that the accused was charged with dishonestly receiving and retaining three white metal ingots with certain marks on them, the prosecution ease being that these articles were found in the shop of his co-accused Lalit who stated that they were left in his shop by the petitioner. There is evidence corroborating the statement of the co-accused with reference to the petitioner. There is also evidence which the learned Magistrate accepts as showing that he had guilty knowledge that they were stolen properties. The only point on which this rule was issued was that the joint trial was illegal inasmuch as the circumstances do not bring it within the provisions of Section 239 (f), Criminal P.C. which is the section under which the prosecution seek to justify the joint trial. That section is as follows:
Persons accused of offences under Sections 411 and 414 of the Indian Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by one offence may be charged and tried together at the same time.
2. For the petitioner it is contended that from the evidence it appeared that the prosecution case was that such white metal ingots were stolen at several different times from the godown of Messrs. Robert McLean & Company. The shortage was detected in 1936 and again on 24th May 1937 and finally on 7th June 1937 and the co-accused was arrested, after the last shortage was detected, on 10th June 1937, and it was in pursuance of enquiry against him that the present petitioner was arrested on the same day. There appears to be no evidence to distinguish between the ingots that were stolen on different occasions and therefore there is no proof that these ingots were the proceeds of the same theft so as to bring the case within the provisions of Section 239 (f), Criminal P.C. It has been urged that in any case this irregularity can be cured by Section 537, Criminal P.C. There is however an express direction in the Code as to which persons may be tried jointly if this can be done without prejudice and in the absence of any evidence bringing the case under the provisions of Section 239 (f) Criminal P.C., in our opinion, the Magistrate had no jurisdiction to try these persons jointly. In Subramania Iyer v. King Emperor (1902) 25 Mad 61, it has been laid down by the Judicial Committee of the Privy Council that the disregard of an express provision of law as to the mode of trial was not a mere irregularity such as could be remedied by Section 537 of the Criminal P.C.
3. As to the offence of receiving stolen property, possession of which has been transferred by one offence, it has been held that this means property which constitutes the proceeds of one single theft. See the cases in See the cases of Emperor v. Lakha Amras (1932) 19 AIR Bom 201, Dalsuk Roy v. Emperor : AIR1925Cal248 and Mt. Guljania v. Emperor (1928) 15 AIR Pat 38. We therefore think that inasmuch as under the law this case and the case against the co-accused should not have been tried jointly, the joint trial was illegal and the conviction and sentence passed upon the petitioner must be set aside. On the merits, endeavour has been made to show that the evidence against the petitioner is meagre and is not sufficient to support the prosecution, but we think that this is a matter into which we cannot enter at this stage. As there certainly appears to be some evidence against the petitioner, it would be for the Crown to decide whether the re-trial should proceed. The petitioner must appear before the Chief Presidency Magistrate to stand his re-trial on the charge. It would however be desirable that this case should be re-tried by the Additional Chief Presidency Magistrate. The petitioner will remain on the same bail.