1. Those are two appeals by two appellants from the same judgment of the learned Sessions Judge who tried their cases together. There were three charges under Section 408 and Section 408 read with Section 109 of the Indian Penal Code against both the appellants. The first charge related to a sum of Rs. 2,500 said to have been defalcated on 26th March 1912; the second charge related to a sum of Rs. 2,150 said to have been defalcated on 29th March 1912, and the third and last charge was with reference to a sum of Rs. 8,620 said to have been defalcated on 8th October 1912.
2. The first ground taken on behalf of the appellants is that there has been a misjoinder of charges; and the second is that the two appellants should not have been tried jointly. Under Section 239, Code of Criminal Procedure, judicial discretion has been given to the Court to try the principal offender and the abetter either jointly or separately; and the manner in which this discretion should be exercised must depend on the facts of each case. We have gone through the judgment of the lower Court and we are of opinion that the case before the lower Court was of such a nature that the two accused should not have been tried on the charges jointly.
3. An objection was taken verbally by one of the appellants, namely Dwarka Singh, on 11th June 1913, the date on which the trial began, that he ought not to be tried jointly with Upendra--the other accused, and a written application was put in on his behalf on 12th June 1913, reiterating the prayer made verbally on the first day of the trial that he should be tried separately and not jointly with the other accused: but inspite of this objection, the lower Court tried them together. We find that, by the joint trial of the two accused, complications have arisen and that the trial would have been much simpler if the two accused had been tried separately. We are not prepared to say that the appellants have not been prejudiced by the procedure adopted.
4. We, therefore, set aside the conviction and the sentences passed on the two appellants and direct that, if the Crown be so advised, the two appellants be re-tried separately on the charges stated in the charge sheet. The Crown may, on the re-trial of the two accused, proceed on three charges mentioned in the charge sheet or confine itself to any one or two of them; and the trial will then proceed in accordance with the directions given.
5. A verbal application has been made by the learned Counsel on behalf of the appellants that, if there is to be a fresh trial of the two accused separately the trial in each case should take place before another Sessions Judge. We are told that Bhagalpur is the nearest Sessions Division to Purnea; and we, therefore, direct that the re-trial, if the Crown proceeds against the two accused separately, shall be before the Sessions Court at Bhagalpur.
6. Pending re-trial the appellants will remain on the same bail.