1. This rule was granted at the instance of one Dalsuk Roy Agarwalla on grounds Nos. 1 and 3 as set out in the petition. Ground No. 1 is that the joint trial of the petitioner with one Motiram was bad in law and without jurisdiction and that it has seriously prejudiced the petitioner. Ground No. 3 is that the learned Sessions Judge did not deal with ail the material points raised in the grounds of appeal. We have not gone into ground No. 3 having regard to the view we take on the first ground on which the rule was granted. Now the facts, so far as they are material, are shortly as follows: The accused, Dalsuk Roy Agarwalla, was convicted by a Magistrate of Sibsagar on the 12th June, 1923, of an offence under Section 411 of the Indian Penal Code and he was sentenced to undergo three months' rigorous imprisonment. He was tried along with one Motiram who was acquitted. The charge against both Dalsuk and Motiram was of receiving and retaining certain property dishonestly and knowing that it was stolen property and they were both charged with receiving and retaining the property on the 9th February. Now the defence of Motiram was that he had bought these goods from Dalsuk Roy on the 9th of February, and the finding, so far as he is concerned, arrived at by the Magistrate was that he purchased the articles (Exhibits 3 and 4) from the accused Dalsuk by way of re-payment of a loan of Rs. 75. It appears from the evidence that Dalsuk must have received the property in question some considerable time before the 9th of February. It is, therefore, clear that the offence with which the two accused were charged was not one arising out of the same transaction or an offence which could have been committed upon the same date. It is, accordingly, argued before us that under the provisions of the Code of Criminal Procedure no joint trial was permissible. No doubt when the charge was framed and upon the facts then before the prosecution the Magistrate was justified at the commencement of the case in putting the accused on their trial together. But when it turned out, as it did in the course of the evidence, that different offences were charged against each of the two accused which did not arise out of the same transaction the Magistrate should have tried the two accused separately. This he failed to do and under the circumstances we think that the trial is bad and that the conviction and sentence passed upon Dalsuk Roy Agarwalla cannot stand. It was suggested by the learned Vakil who appeared to oppose the rule that we should not interfere, firstly, because the point was not taken in either of the Courts below and, secondly, on the ground that Dalsuk was not prejudiced by the joint trial, and it was also argued that the two accused appeared by the same pleader and put up the same defence. But it seems to us that if a joint trial is bad it is open to an accused, who has been convicted at such trial, to take the point at any time even if it was not taken before in either of the Courts below and we think that there is no obligation on an accused if a joint trial is not permissible to prove prejudice. The trial is either good or bad and if it is bad, as we hold it is, no question of prejudice arises.
2. In the circumstances, we set aside the conviction of and the sentence passed upon the accused and it will be for the authorities to consider whether they desire to proceed further against Dalsuk Roy Agarwalla.
3. The accused will be discharged from his bail-bond.