1. This is a Rule calling on the District Magistrate to shew cause why the conviction and sentence should not be set aside on the third ground mentioned in the petition. The third ground is that the joinder of two distinct offences under one charge is an illegality which is fatal to the proceedings We have looked at the charge, and I agree that the charge, as it stands, is an illegal charge, having regard to Section 233 of the Criminal Procedure Code. There are two distinct offences, and for each offence separate charge ought to have been made. Though certain provisions in the Code provide that more that one charge may raider certain circumstances be tried together, that does not justify the inclusion in one charge of several distinct offences, and as that is an illegality, in my opinion, the Rule must be made absolute and the conviction set aside.
2. With regard to the future, it will be a matter for the Magistrate to consider whether this man ought to be put on his trial again or not. It was stated in the course of the argument that he has suffered three months' imprisonment. That would be one matter which the Magistrate will take into consideration In my view, the matter should be left to his discre(sic) to decide whether he should prosecute the man further or not.
3. I agree that the Rule should be made absolute, though with great reluctance, as it is perfectly clear that the defect in the charge has never made the least difference to the petitioner. We are bound, I however, by the decision in Subrahmania Ayyar v. King-Emperor (1901) I.L.R. 25 Mad. 61., and the charge framed being illegal, the conviction cannot be sustained.
4. I agree also in leaving it to the Magistrate to decide whether the proceedings against the accused, should continue, and I do not desire to hamper him in any way in dealing with the question.