1. The rules before us I have been obtained by Mohesh Chandra Guha, the father, and Kumudini Kanta Guha, the son, who have been convicted at the same trial by the Magistrate of receiving stolen property, namely, currency notes, as well as under Section 414 of the Indian Penal Code of assisting in concealing or disposing of such notes which they knew or had reason to believe were stolen property.
2. In trying these two persons together in the same trial, there has, no doubt, been a misjoinder of parties. Each of these persons is charged with the same offences only in respect of a currency note of Rs. 500, but in respect of the charges on the two currency notes of 100 the charge against each of the accused related only to one of these currency notes, and, therefore, the transaction was altogether separate and distinct against each of them.
3. There is no reason why, in respect of the matter connected with the note of Rs. 500, the two petitioners might not be properly tried together, but the other charges certainly could not have formed part of the same trial. The possession stated to have been acquired by each of these petitioners in respect of each of these notes of Rs. 100 was at different times, and it would seem that neither of these transactions is in any way connected with the transaction relating to the note of Rs. 500.
4. Objection appears to have been taken from the very first in the Magistrate's Court to this joint trial and, after the conviction of the petitioners, it was renewed in the Court of Appeal. The Sessions Judge has held that it has seriously prejudiced the petitioners. He has also observed that the evidence is so complicated in respect to each of these charges that it is impossible to separate it in order to try the case under one charge against either of the prisoners. He has accordingly on this ground set aside the conviction, and the sentence passed on Mohesh, and directed a re-trial to be held.
5. In respect of the other petitioner, Kumudini, the Sessions Judge has found that he can be properly convicted on his own confession, and he has accordingly affirmed the conviction and sentence on one of the charges on this confession.
6. Objection has been taken before us by the learned Counsel that the Sessions Judge had no jurisdiction to pass the order for the re-trial of Mohesh and, as authority for this, we have been referred to the case of Queen-Empress v. Chandi Singh (1887) I.L.R. 14 Cal. 395. We find that, in that case, the learned Judges held that the misjoinder made the proceedings illegal, and they accordingly held that the proceedings were altogether void. The order that was passed was to direct that the prisoner be discharged from custody. On this, it is contended that there was no power to do more than to discharge the accused, and that the form of order which should have been passed by the Sessions Judge on the appeal should have been the same as was passed in the case of Queen-Empress v. Chandi Singh (1887) I.L.R. 14 Cal. 395. On the other hand, we find in other reported cases, for instance in the case of Queen-Empress v. Fakirapa (1890) I.L.R. 15 Bom. 491 as well as in the case of Empress v. Murari (1881) I.L.R. All. 147, that after an order of discharge a re-trial was ordered. We think that we cannot properly conclude from the case of Queen-Empress v. Chandi Singh (1887) I.L.R. 14 Cal. 395 that the learned Judges meant that a Court, in discharging the accused on the ground of misjoinder of parties, had no power to add to that order a direction that the accused should be re-tried. A fresh trial could be held because the accused had not been acquitted. It is, however, contended that further proceedings should be left in the discretion of the Magistrate. We think that there is no reason at all why the Superior Court should not point out to the Magistrate the course which should be taken in such a matter, and that it was not intended by an order of discharge in the case of Queen-Empress v. Chandi Singh (1887) I.L.R. 14 Cal. 395 to free the accused from the consequences of his acts, or to declare that no order for re-trial could be passed.
7. The learned Counsel next contends that the Sessions Judge, on the appeal of Mohesh, should have decided whether there was evidence on which a re-trial could properly take place. But we find that the Sessions Judge has stated as the ground on which he directed a re-trial that the evidence on each of the charges was so mixed up that it was impossible to distinguish it in respect of any particular charge. Had it been otherwise, we think, the Sessions Judge might have determined whether the conviction and sentence passed on the appellant could be maintained on evidence properly admissible and considered separately in respect of any of the charges. For these reasons, we cannot hold that the learned Sessions Judge had no reason for the order which he made, and we also think that he was competent to make such order. The rule, therefore, in the ease of Mohesh Chandra Guha (No. 329) is discharged.
8. It remains for us to consider the case of Kumudini Kanta Guha. We cannot understand on what grounds the Sessions Judge has distinguished this case, for he finds, as in the case against Mohesh Chandra, that the prisioner has been prejudiced by the irregularity of misjoinder. No doubt, the Sessions Judge has relied on statements made by Kumudini which, he says, amount to a confession, but we think that the statements should be taken in connection with the other evidence in the case, and that for this reason it would not be just and proper to convict solely on those statements. We accordingly set aside the conviction and sentence passed on Eumudiai Eanta, and we direct that a re-trial be also held in his case.
9. We would point out to the Magistrate that it will be for him to consider whether, having regard to the facts of the case, separate trials should be held in respect of the charge relating to the note of Rs. 500.