1. In this case the petitioner Ramratan Sukul has been convicted under Section 411, Indian Penal Code, and sentenced to rigorous imprisonment for the period of two years. It appears that on the night of the 14th October there occurred a theft in the house of a Marwari banking firm in Chittagong, and that in the course of this theft notes, cash and ornaments to the value of some Rs. 30,000 were stolen. On the 15th October two currency notes, each of the value Of Rs. 100, was found with Ramratan, the petitioner. He was placed on his trial jointly with one Loke Nath Singh. Loke Nath like Ramratan has also been convicted under Section 411, Indian Penal Code. The learned Sessions Judge says that this joint trial was not improper, because there was but one transaction in which the two appellants were jointly concerned. Baton the facts, so far as we have been able to ascertain them from the judgment, this cannot be. The case for the prosecution apparently was that Loke Nath was himself the thief and he handed over Rs. 200 as part of his booty to Ramratan. But as matter of fact the Deputy Magistrate has convicted Loke Nath also Section 411 and not under Section 879, Indian Penal Code. It would seem therefore, that he looked upon Loke, Nath as the first receiver and that he, having secured a certain amount of 'booty,' subseguently handed aver a portion of his ill-gotten gains to the present petitioner Ramratan. The first receipt or retention by Loke Nath and the act by which Loke Nath handed over ft portion of the stolen goods, which he had himself received, to Ramtan can in no Sense be looked upon as forming part of one transaction. It is also not clear to, us that the petitioner was not prejudiced by the acceptance in Evidence of the statements said' to have been made by Loke Nath.
2. Under these circumstances we set aside the conviction and the sentence imposed; on the petitioner and direct that he be re-tried. At there-trial it will be open to either party to examine Loke Nath as a witness. We further direct that, he re-trial be held-by some Magistrate of competent jurisdiction , other than the Magistrate before whom the conviction was had, such Magistrate to be appointed by the District Magistrate. In these terms the Rule is made absolute.