1. This rule has been granted on four grounds which I propose to deal with seriatim. The first ground is that the trial is vitiated by the fact that the provisions of Section 342, Criminal P.C., were not complied with in the case of the accused Tamejuddin inasmuch as he was not examined under the mandatory provision of that section at the close of the prosecution evidence. It will appear that Tamejuddin, who was represented by a pleader, was ill at the time and was not present when this examination at the close of the prosecution evidence should have taken place. The other accused persons were duly examined but Tamejuddin was not then examined not being -present. He was examined at a subsequent stage, namely at the conclusion of the defence evidence.
2. Mr. Chowdhury who appears in support of the Rule contends that this was not a compliance with the terms of Section 342, Criminal P.C. He contends that the provisions of the section are mandatory and that the accused persons must be examined at the conclusion of the evidence for the prosecution and that the subsequent examination at a later stage is no compliance with the terms of the section. There are a number of decisions of this Court which go to support the view which Mr. Chowdury asks us to adopt of the provisions of Section 342, Criminal P.C. They will be found in the case of Pramatha Nath Mukerjee v. Emperor A.I.R. 1928 Cal. 470 and in the case of Surendra Lal Shah a v. Isamuddi : AIR1925Cal480 . In the last case it was hold that the examination of the accused under Section 342, Criminial P.C., must take place at the close of the prosecution case and before the accused has entered upon his defence, and his examination at a subsequent stage was no compliance with the section.
3. Mr. Chatterjee who has appeared for the Opposite Party has contended that the law as laid down in these cases is wrong and he would ask us to refer the question to a Full Bench as to whether a failure to comply with the provisions of Section 342, Criminal P.C., was curable under Section 537, Criminal P.C., or whether it was incurable and an illegality as has been held in the cases I have already referred to. Speaking for myself and with great respect to the learned Judges who have held otherwise, it has always bean my view that an omission to examine the accused at the stage indicated by the section is an irregularity and curable under Section 537, Criminal P.C. But Mr. Chatterjee has asked that if we do not agree with the law as laid down in the decisions referred to, we should refer the question to a Full Bench. But as we shall dispose of the case of the petitioners on another point, no reference would seem either possible or desirable.
4. Mr. Chowdhury has argued that the failure to examine Tamejuddin vitiates the trial not only as regards Tamejuddin but as regards all the accused persons. Nona of the decisions, to which I have referred, decides this particular point. It is not, however, necessary to decide the point. For other reasons we are obliged to hold that the conviction and sentence must be set asde and the whole case retried. However, it is not necessary to pass any order under this particular branch of the Rule, because for certain reasons which I shall shortly deal with, it would be necessary to hold that the whole trial is bad and that the whole case will have to be re-tried. This depends upon the last two points which have been urged by Mr. Chowdury on behalf of the petitioners.
5. Mr. Chowdhury first of all contends that the charge as framed is bad in law because two distinct offences have been included within one charge. This no doubt is correct. As far as can be seen there were two distinct offences, namely the occurrence on the 16th March when a number of persons attacked the complainant and his party to deprive them of a large number of logs which they were removing from the forest and also the occurrence on the 17th March when it is alleged the accused took away certain other logs from another part of the forest which also belongs to the complainant. The petitioners are charged both with being members of an unlawful assembly and of committing theft on both these occasions. Clearly these offences were distinct offences there being one unlawful assembly and theft on the 16th March and another unlawful assembly and theft on the 1.7th March. Section 233, Criminal P.C., requires a separate charge for each distinct offence. In this case clearly the two offences have been dealt with in a single charge. There is one charge of being members of an unlawful assembly and one charge of committing theft. The joinder of two offences in a single charge has been held by this Court to be an irregularity and not an illegality: see the cases of Moharuddi Malita v. Jadu Nath Mandal  11 C.W.N. 54; Ram Subheg Singh v. King-Emperor  19 C.W.N. 972; Musabi Singh v. Emperor  41 Cal. 66; and Radha Nath Karmakar v. Emperor A.I.R. 1922 Cal. 573. It has not been suggested by Mr. Chowdhury that his clients have been prejudiced by this joinder of offences in one charge which is by itself not a sufficient reason for setting aside the trial.
6. Mr. Chowdhury's next contention is that these four offences do not form part of the same transaction and therefore they could not be tried together. Mr. Chatterjea who appears for the Opposite Party has admitted that if these four offences do not form part of the same transaction then clearly their joint trial was illegal. Therefore the question that remains to be decided is whether these four offences can be considered to form part of the same transaction. What does or does not form part of the same transaction may be considered to be a question of fact in each particular case. Certain tests have been laid down in various cases by which it may be determined whether certain acts do or do not form part of the same transaction. In some cases it has been held that acts may be considered to form part of the same transaction if there are between these acts proximity of time, community of intention and continuity of action.
7. Mr. Chatterjee has argued that the intention of all the four acts was the same, namely, to take possession of the logs which the complainant was endeavouring to take out of the forest and to deprive the complainant of his right to take any of the logs of the forest. Admitting that this is so for the sake of argument, there are still the other two tests: the proximity of time and the continuity of action. Between these two acts there was an interval of at least 24 hours. The two acts took place in different parts of the forest and they related to different logs. It was not the case of the prosecution that the accused endeavoured on the first day to remove a certain number of logs forming a particular batch and came back next day to remove the remainder of the logs that they had not been able to remove on the previous day. The two transactions or acts took place in different parts of the forest.
8. After a careful examination of all the facts of the case we do not think that these acts can be considered to form part of the same transaction. The offence on the 16th March seems to us to be a separate transaction to the offence on the 17th March. Clearly therefore the trial of these offences in the same trial is against the provisions of Section 235, Criminal P.C., read with Section 239. We have therefore no alternative in the present case but to set aside the conviction of and the sentence passed on these accused persons and to order that they be re-tried of the offences, if necessary in separate trials. The trial to be held before some Magistrate other then the Magistrate who has already tried the case.
9. Pending the disposal of the case the accused will remain on the same bail.
10. For the reasons stated by my learned brother I agree that there must be a re-trial.