Lancelot Sanderson, C.J.
1. This was a Rule granted by this Court, the learned Judges being my learned brothers Mr. Justice Chaudhuri and Mr. Justice' Newbould, calling upon the District Magistrate and the opposite party to show cause why the order complained against should not be set aside or why such other further order should not be made as to this Court might seem fit and proper.
2. The order complained of was made by the learned Sessions Judge of Burdwan, and by such order he allowed the appeal and set aside the convictions of and sentences upon the appellants, Satish Chandra Mitter, Puma Chandra Mitter and Keshab Chandra Mitter. There was a separate appeal presented by the fourth accused Seodhan Dobey, and the conviction of and sentence upon this appellant was set aside. The learned Judge ordered a re-trial in both cases.
3. The first point, that we have to consider, was raised by Mr. Sanyal, the learned Vakil for the accused persons. He urged that Mr. Mukherjee who is appearing for the complainant Bejoy Krishna Mookerjee has no locus standi in this Court on the hearing of this Rule.
4. As I understand the facts, in the first Court the learned Vakil, Mr. Mookerjee, conducted the case on behalf of the complainant: and the four accused were convicted. They appealed to the learned Sessions Judge, and then an application was made on behalf of the complainant to the District Magistrate that Mr. Mookerjee, who had appeared at the trial, should be allowed to appear in the capacity of Public Prosecutor on the hearing of the appeal, and that permission was granted and the learned Vakil Mr. Mookerjee appeared on the hearing of the appeal.
5.The complainant being dissatisfied with the decision of the learned Sessions Judge applied to this Court and obtained a Rule which I have already read, and it is in support of that Rule that Mr. Mookerjee desired to appear, and to his appearance Mr. Sanyal on behalf of the accused persons objected.
6. In my judgment there is no doubt that we have the power to say that we would hear Mr. Mookerjee, in pursuance of the powers conferred upon this Court by Section 435 of the Criminal Procedure Code by way of revision, and upon the hearing of that Rule it was within our power to say that we would hear Mr. Mookerjee on behalf of the complainant and in pursuance of that power and in the exercise of our discretion we said we would hear him. Consequently, in our opinion, there is no substance in the preliminary point which was taken by the learned Vakil Mr. Sanyal. I now come to the merits of the Rule. The ground upon which the learned Judge set aside the conviction and the sentences was that two distinct offenses had been included in one charge and that such inclusion of two distinct offences in one charge was in breach of the first part of Section 233 of the Criminal Procedure Code, and, holding himself bound by a certain decision, to which he referred, the learned Judge held that the result of that breach was to constitute the proceedings against these persons illegal, and that consequently the conviction and sentences must be set aside and a re-trial held.
7. To see whether that decision should be upheld, it is necessary to state quite shortly what the nature of the charges against the accused was:
The main charge against the four accused was under Section 147, Indian Penal Code, and it ran as follows: 'First--That you on or about the 9th day of March 1919 at Chhatapathar were, along with others, members of an unlawful assembly the common object of which was by means of criminal force to take possession of the North Morlia Colliery together with its office, machinery, stores, books, etc., which property was in the possession of Messrs. Patel and Mukerjee, and in prosecution of this common object criminal force was used by some of the members of the said assembly, and thereby committed an offence punishable under Section 147 of the Indian Penal Code, and within my cognisance. Secondly, that you on or about the same date at the same place committed house trespass by entering into the office premises of the said colliery with intent to take forcible possession of the colliery, and thereby committed an offence punishable under Section 448 of the Indian Penal Code, and within my cognisance.'
8. The next charge was against Satish Chandra Mitter (the first accused) and Seodhan Dobey (who was the fourth accused in the other charge) and it ran as follows:
That you on or about the 9th day of March at Chhatapathar committed theft of (1) a box containing cash belonging to Messrs. Patel and Mukerjee, and (2) a bicycle (Exhibit I) belonging to Amar Singh from the office premises of the North Morlia Colliery which is used as a human dwelling, and thereby committed an offence punishable under Section 380 of the Indian Penal Code and within my cognisance.
9. The third charge was against Seodhan Dobey alone and it ran as follows:
That you on or about the 9th day of March 1919 at Chhapathar oommitted theft of a cow belonging to Amar Singh from the North Morlia Colliery and thereby committed an offence punishable under Section 373 of the Indian Penal Code and within my cogniseance.--Those were the charges.
10. The allegation on behalf of the prosecution was that on the 9th of March 1919 the four accused together with a number of other people forcibly took possession of the colliery in question of which Messrs. Patel and Mukerjee were the managers, the complainant in this case being the store-keeper of the managers, and that on the same date two of the accused, Satish Chandra Mitter and Seodhan Dobey, stole from the office premises of the colliery company these two articles, a box containing cash belonging to Messrs. Petal and Mukerjee, and a bicycle belonging to Amar Singh. It was further' alleged that the fourth accused Seodhan Dobey on the same date stole a cow which belonged to Amar Singh from the same premises. There are other facts in connection with this case to which it is not necessary, for my present purpose, to refer.
11. It is alleged by the prosecution that the main object was to get possession of the colliery, and that the first and the fourth accused committed these thefts to which I have referred as part and parcel of the same transaction.
12. With regard to the charge against Satish Chandra Mitter and Seodhan Dobey the point, on which the learned Judge has relied, arises in this way: It is said that that charge included two distinct offences: (1) an offence of theft, committed by the first and the fourth accused, of a box containing cash belonging to Messrs. Patel and Mukerrjee, (2) a distinct offence by the same accused persons of stealing a bicycle belonging to Amar Singh, and that inasmuch as these two distinct offences were included in one charge, the provisions of Section 233 had not been complied with.
13. Our attention has been drawn to a number of cases in this Court, the decisions in which, in my judgment, cannot be altogether reconciled. But in almost all of them there was no doubt that the charge which was in question included two distinct offences. In my judgment the charge in this case, to which I have referred, did not include two distinct offences. Consequently it is not necessary to deal with the cases the decisions in which were given upon the basis of the charge containing two distinct offences. The wording of this charge on the face of it, in my judgment, charges the theft of these two articles as one offence. Therefore, so far as the charge itself is concerned, it does not appear that two distinct offences were included in one charge. On the facts of the case, as I understand them, there were not two distinct offences committed or alleged. The allegation was that on this 9th of March the four accused persons and others went to the colliery premises for the purpose of taking forcible possession thereof, and that on the same day two of the accused, the first and the fourth, stole from the office premises of the colliery company two articles, one a box and the other a bicycle. It so happened that the box belonged to Messrs. Patel and Mukerjee and the bicycle belonged to Amar Singh who was a servant of the company. The allegation was that both the articles were in the office premises; that they were both removed from the office premises at the same time by the two accused. In my judgment, both on the face of the charge and upon the facts alleged there were not two distinct offences charged but only one offence was alleged. Consequently, the ground upon which the learned Judge, as I understand his judgment, somewhat against his will felt himself constrained to hold that the convictions should be set aside should not, in my judgment, be upheld.
14. But the learned Vakil who appeared for the accused urged that he was able to support the decision of the learned Judge on another ground, although the learned Judge did not approve of that ground, and that was that the charge against Seodhan Dobey in respect of the theft of the cow related to an offense which was not part of the same transaction as the other offences charged, and consequently the whole trial was bad.
15. It is not disputed by the learned Vakil for the complainant that if the charge against Seodhan Dobey in respect of the theft of the cow does relate to an offence which is not part of the same transaction as the other offences charged, the whole trial was bad. But he urged that on the facts of this case it ought to be held that the theft of the cow was part of the same transaction. The Magistrate who tried the case said: 'On the facts, therefore, the theft of the cow would be a part of the same transaction which took place on the 9th of March.' It was alleged that the evidence showed that the cow was on the colliery premises on the 9th of March and three or four days afterwards it was found in the possession of Seodhan Dobey. The learned Judge said: 'It is true that the evidence does not show that the cow said to have been stolen was stolen during the same transaction as the alleged riot. But,' he goes on to say, 'I think there were prima facie grounds for framing the charge' and, then later on in the judgment he draws attention to the fact that there had been no argument on the facts of the case, as in his opinion it would be undesirable for him to consider them at that stage. The learned Vakil Mr. Mukerjee informs us that inasmuch as the learned Judge was in his favour on this point he was not heard. I do not read the learned Judge's judgment, especially having regard to the fact that he said that the facts were not argued, as overruling the finding of fact of the learned Magistrate who decided the case. I think it may reasonably be taken that the alleged theft of the cow by the fourth accused, if such theft was committed (I express no opinion about that), was part and parcel of the same transaction which was the subject matter of the charge under Section 147; and, consequently the judgment of the learned Judge on that point was correct.
16. The result is that we set aside the learned Judge's decision, by which he set aside the convictions and sentences and directed a re-trial, and we direct that the record be sent down to him for the purpose of hearing the appeal.
17. The learded Vakil for the complainant raised a point that the second and the third accused Keshab Mitra and Purno Mitra had no right of appeal to the learned Sessions Judge, inasmuch as the Magistrate had in flicted only a fine of Rs. 50 on each of them. On the other hand, Mr. Sanyal for the accused urged that they had a right of appeal. The matter rests upon Section 413 of the Criminal Procedure Code. There are conflicting decisions of other High Courts, but there is no decision, as far as we are aware, of this Court upon the question whether in cases, such as this, where some of the accused received sentences exceeding one month's imprisonment or a fine of Rs. 50 and where other accused were fined Rs. 50 only, the accused, upon whom the fine of Rs. 50 only has been imposed, has a right of appeal. In my judgment, it is not necessary on this occasion to express any opinion upon the point and for this reason, that if the learned Judge thinks that the second and the third accused Keshab Mitra and Purno Mitra ought not to be convicted or that the sentence is not proper, even if he comes to the conclusion that there is no right of appeal, it will be open to the learned Judge to refer the matter to this Court, so that this Court can deal with it and no injustice will be done to those accused by reason of our not expressing any opinion upon the point at the present moment.
18. The Rule is made absolute.
19. I agree.