1. This is a Rule calling upon the District Magistrate of Monghyr to show cause why the conviction and sentences on the petitioners should not be set aside and re-trial ordered on the ground that the charges of theft and charges under Section 225 I.P.C. cannot be joined, and on the further ground that there was a misjoinder in respect of the two cases of theft one of which is alleged to have occurred during the rescue and the other previous to the rescue.
2. It appears that Tulsi and Chando were charged with stealing bamboos along with two other thieves. Of these only Tulsi was caught by the complainant and the other three fled. While Tulsi, was being taker to the Thana Chando with others is alleged to have rescued Tulsi, and in the rescue another man Tilakdhari is alleged to have snatched a gamcha and Chulhai a chadder from the person of the complainant.
3. This appears to bring the case within the purview of the well-known case of Subrahmania Ayyar v. King-Emperor 25 M. 61; L.R. 28 I.A. 257. It is quite clear that there has been a misjoinder and that the trial is thereby vitiated.
4. We therefore make the Rule absolute and direct that there be a re-trial of Tulsi and Chando on the original charge of theft, and re-trial of persons who rescued Tulsi under Section 225, 1. P.C.; and we direct that any charge of theft against the rescuers alleged to have been committed in prosecution of the rescuing be tried with the rescue under Section 239 Criminal Procedure Code. Two trials will be enough. The convictions and sentences are set aside. The accused will remain on bail to the satisfaction of the District Magistrate.