1. This is an appeal by the Superintendent and Remembrancer of Legal Affairs, Bengal, on behalf of the Government of Assam, against the order of the First Additional Sessions Judge of the Assam Valley Districts, dated May 15, 1934, setting aside the convictions of the respondents and the sentences passed thereupon, for offences under Sections 380 and 411 of the Indian Penal Code. The Sessions Judge did not go into the merits of the case but decided the appeal on a point of law. It is unnecessary, therefore, to go in detail into the facts. They are sufficiently stated in the appellate judgment.
2. The case arose out of two thefts in two running trains, 29 Up and 30 Down, of the Assam Bengal Railway on the nights of August 17 and August 22,1933, and concerning two passengers, the owners, respectively, of two suit cases which, were stolen from their compartments on the two nights mentioned. Both the suit cases were found in the early morning of August 22, in the house of the respondent Raghu Lal about a mile from Nakachari Railway Station on the same line. At the time when they were found partly concealed in Raghu Lal's house, Dhanjir and Hanuman also were found in the house.
3. The Magistrate originally framed charges under Sections 411-109 and 411 of the Indian Penal Code. But, subsequently, he thought that the charges so framed were not very clear and might prejudice the accused. Therefore in their presence, he framed two charges under Sections 380-34 of the Indian Penal Code, and the accused were given an opportunity to have the witnesses re-called for cross-examination. He cancelled the previous charges under Section 411 and 411-109. At the end of the trial, he convicted Dhanjir and Hanuman under Section 380, and the appellant Raghu Lal under Section 411 of the Indian Penal Code, and sentenced Dhanjir and Raghu Lal to six months' rigorous imprisonment, and a line of Rs. 50, or in default one month's' rigorous imprisonment on each count, and Hanuman to six months' rigorous imprisonment on each count.
4. It appears from the record of the judgment of the learned Sessions Judge that he thought that had the learned Magistrate convicted all the appellants under Section 380 ''as they were originally charged under', the trial would have been in order. But that as Raghu Lal was found not to have committed either of the thefts, but to have received the stolen property of the first theft on the 18th morning and the other stolen property on the 22nd morning, according to the Magistrate's own finding, a joint trial offended against the mandatory provisions of Clauses (c) and (e) of Section 239 of the Criminal Procedure Code. The offences could not be said to have been committed jointly by all the appellants.
Thus the joint trial of two offences, one under Section 380 and the other under Section 411, committed on two different dates not jointly by all the appellants is quite illegal.
5. Now it appears from this record, if it be accurate, that the learned Sessions Judge thought that all the appellants had originally been charged under Section 380 and that this had subsequently been altered to some other charge. If this was his belief it was inaccurate, because, as I have pointed out, the accused were originally charged under Section 411, and, ultimately under Section 380 instead of Section 411.
6. The record seems to show that the learned Sessions Judge misread Section 239 of the Criminal Procedure Code. There was, in this case, no joint trial of two offences, one under Section 380 and the other under Section 411, as stated by the learned Judge. The only charges were under Section 380, against all the accused, and in respect of each of the thefts.
7. It is to be observed that the provisions of Section 239 Clauses (a) and (c) refer to persons, accused, that is to say, charged. The provisions are intended to deal, therefore, with the position as it exists at the time of charge, and not with the result of the trial. All these persons were accused of the same offence, namely, theft under Section 380, committed in the course of the same transaction, namely, the first theft. They were also persons who were accused of more than one offence of the same kind committed by them jointly within the period of 12 months, that is to say, two thefts, one on. the 17th and one on August 22, each of them being committed by them jointly.
8. The real question, therefore, which arises upon this appeal, and the only question which requires consideration is whether, in these circumstances, the learned Magistrate, was entitled to convict Raghu Lal of an offence under Section 411 with which he had not been charged. In my opinion that procedure is covered by Section 237 of the Criminal Procedure Code. This was a case in which though the facts which could be proved were not in doubt, there was a doubt about which offence these facts would constitute, that is to say, the decision rested largely upon which inference the Magistrate would draw from the facts proved after he had heard the whole of the evidence including the cross-examination and the arguments of the Pleaders on both sides. Even if the Magistrate had framed charges under Section 380 against Dhanjir and Hanuman and under Section 411 against Raghu Lal, in my opinion, these three persona could have been tried together upon those charges in respect of these two thefts under the provisions of Section 239 (e).
9. The result is that the order of the learned Sessions Judge setting aside the convictions, and sentences must be set aside, and the appeal sent back to him to be heard upon the merits. The respondents will remain on the same bail and will appear before the Sessions Judge when ordered by him to do so.
10. I agree.