M.C. Ghose, J.
1. The petitioner has been convicted in two separate cases under Sections 409 and 477-A of the Indian Penal Code and under Section 55 of the Postal Act, The prosecution case is that the petitioner was a Post Master in charge of the Hatigarh Postoffice and in that capacity on different dates in the month of December, 1930 he received five value-payable articles for delivery to the consignees on payment of the price. He delivered the articles and received payments therefor but dishonestly misappropriated the sums realised and dishonestly omitted to make proper entries in the Register and in each transaction he is said to have committed an offence under Sections 409 and 477 A, Indian Penal Code, and under Section 55 of the Postal Act. Three of these transactions were tried in one trial and two of them in a separate trial.
2. It is urged before us that the charges of three distinct criminal breaches of trust could not be properly tried together with the charges of three distinct falsification of accounts, that the two classes of cases could not be joined together and that such misjoinder of charges has vitiated the trial. Section 133 of the Code of Criminal Procedure says 'For every distinct offence of which any person is accused there shall be a separate charge' and every such 'charge shall ordinarily be tried separately.' Under Section 234 a person maybe charged and tried at one trial for three offences of the same kind committed within a space of 12 months. Therefore, three offences of criminal breach of trust may be tried together and three offences for falsification of accounts may be tried together. But an offence of criminal breach of trust is not of the same kind as an offence of falsification of accounts. Therefore, the trial of two or more charges of criminal breach of trust cannot legally be joined with two or more charges of falsification of accounts. See the case of Raman Behari Das v. Emperor 22 Ind. Cas. 729 : 41 C. 722 : 15 Cr. L.J. 153 : 18 C.W.N. 1152, in which it was held that a joinder of three charges under Section 409 with three under Section 477-A relating to different transactions is not warranted by any of the exceptions provided in the Code and is illegal and that a misjoinder is absolutely fatal to the trial.
3. It has also been urged that the learned Magistrate after the conclusion of the case and before delivery of judgment made an alteration in the charge. The accused person thereupon made a petition asking for certain witnesses to be called for cross-examination. The learned Magistrate rejected the petition. In his explanation the learned Magistrate states that in this case the alteration was in no way material and that the objection raised by the accused was absolutely frivolous. It may be that the alteration did not in fact prejudice the accused in any way but it is to be observed' that Section 231 Criminal Procedure Code does not leave any discretion to the trying Magistrate The section is mandatory, ft states that in a case of an alteration of a charge after the commencement of the trial the accused shall be allowed to recall or resummon and examine any witness who may have been examined. In may opinion, the rejection of the petitioner's petition was in violation of the terms of Section 231 and as such has vitiated the trial.
4. In the circumstances, the convictions in both the cases are act aside and the cases are sent back for a fresh trial according to law.
5. The petitioners will remain on the same bail pending further orders by the Magistrate.
6. I agree.