JUDGMENT
Bucknill, J.
1. This was an appeal made on behalf of the Crown from an acquittal by the Sub-Divisional Officer of Dinapur of two men named Bishun Singh and Lochan Singh who were charged before him with an offence punishable under the provisions of Section 411 of the Indian Penal Code. The reason why the Sub-Divisional Officer acquitted the accused was purely on a point of law; the judgment of the Sub-Divisional Officer is dated the 1st September last. The facts in the matter are very simple. It would appear that in the house belonging to the two accused, who are brothers, a considerable quantity of property which it is alleged was stolen property, was discovered. This property is said to have been derived, so I understand, from three different thefts; part of the property consisted of some Rs. 2,750 worth of unused half anna postage stamps which had been stolen from a railway waggon in transit from Howrah to Indore; and in the case in which the Sub-Divisional Officer acquitted the two accused, these stamps were the subject-matter of the charge against them; which was that the stamps had been dishonestly retained by them they knowing or having reason to believe that they were stolen property. Other property which was discovered at the search of the house of the accused consisted of carpets; the alleged dishonest retention of these carpets was made the subject of a separate criminal proceeding in which the accused were charged under Section 411 with dishonest retention of these carpets; the accused were tried by an Honorary Magistrate with First Glass powers (one Captain Miller) who acquitted Lochan Singh but convicted Bishun Singh sentencing the latter to 18 months rigorous imprisonment. A third lot of property found at the house of the accused at the same time as the stamps and carpets, consisted, so we are informed, of buckets and padlocks, and those articles were made the subject-matter of still a third criminal proceeding though at the date of the Sub-Divisional Officer’s judgment that trial had not then taken place. The Sub-Divisional Officer at the commencement of his judgment explains how it came about that three separate proceedings were instituted in, respect of these three different sets of articles. He writes: “In the first instance the Police sent up the accused under three charge sheets and this case (that is to say the case relating to the stamps), was transferred by me to the file of, Captain Miller (Honorary Magistrate-with “First Class powers) for disposal. He returned the case as he was already trying the accused under Section 411, Indian Penal Code, in connection with other property (carpets) found at the same time and place (January 21st 1923) as that found in this case. Another similar case was transferred to the Sub-Deputy Magistrate and the other, returned by Captain Miller, (the present case) I kept myself. There seemed, however, to be conflicting rulings on the subject of joinder of charges in such eases and I subsequently referred the matter to the District Magistrate for taking the opinion of the Legal Remembrancer. After a considerable time had elapsed, I received the reply of the latter through the District Magistrate. This was to the effect that the data given him were not sufficient for him to be able to pronounce an authoritative opinion, but that from the facts which had been brought to his notice he thought separate trials should be held. The cases were, “therefore, proceeded with from the point where they had been left and in accordance with the original charge sheets.” In the present case 21 witnesses were examined on behalf of the prosecution before the Sub-Divisional Officer and they proved, without any doubt, that the stamps which were found in the accused’s house were stolen from a railway waggon and were part of a consignment of stamps in transit from. Howrah (Calcutta) to Indore. The theft took place on the 22nd December 1922. There was no proof as to who was the thief nor as to when or how the stamps came into the possession of the accused. The accused pleaded not guilty and, after the charge had been framed, put forward the plea that the stamps were discovered at their house on the same date and at the same place as the carpets which had been the subject-matter of the criminal proceeding under Section 411, Indian Penal Code, before Captain Miller and that, therefore, there could be no second trial (i.e., in respect of the stamps) in connection with what was the same offence, there being no evidence to show that the stamps and the carpets had been received by them (the accused) on different dates. On behalf of Lochan Singh it was further maintained that, as he had been acquitted by Captain Miller on the same evidence as had been adduced in the stamp case, he could not be tried again in view of the provisions of Section 403 of the Criminal Procedure Code. This plea was supported by a reference to several decided cases and it is certainly difficult to see how, in view of these decisions, the Sub-Divisional Officer could have come to any other conclusion than that he must acquit the accused as indeed he did. The learned Government Advocate, however, invites us to differ from the decisions in Some of these cases and to hold that there was no valid objection to this second trial.
2. The first of these cases is Ishan Muchi v. Queen-Empress 15 C. 511 : 7 Ind. Dec, (N.S.) 925. It was a case dealing with charges of dishonestly receiving stolen property (section 411, Indian Penal Code); and it laid down the dictum that a person, in whose possession various parcels of stolen property derived from differnt sources (i.e., the proceeds of different thefts) are simultaneously found, cannot, in the absence of evidence to show that the various parcels were received at different times, be subjected to a series of trials on charges of dishonest reception each relating to a different parcel. The learned Judges (Prinsep and Pigot, JJ.,) were of the opinion that, if there was no evidence proving reception of the various parcels at different times, it must be assumed that they were received at the same time and that consequently but one offence was committed. The reasoning is that the offence takes place at the moment of receipt assuming, of course, that at receipt the receiver knew or had reason to believe that the property was stolen: and with this decision the learned Government Advocate does not quarrel. What he does object to is that in subsequent decisions the same reasoning has been applied in cases dealing with the dishonest retention of stolen property. It may be desirable to give some detail of the case just quoted in order that it may be clearly seen upon what foundation the later decisions were based. In Ishan Muchi v. Queen-Empress 15 C. 511 : 7 Ind. Dec, (N.S.) 925 certain persons were charged under Section 411, Indian Penal Code, and tried at two separate trials for dishonestly receiving two lots of stolen property each of which had been stolen at different times from a different person: they were convicted in both cases and appealed in both. In each case the evidence clearly proved that the particular lot of property which was the subject-matter of the tiral had been in fact stolen from its respective owner; both lots of property (or parts of both lots) were found at one search in the accused’s houses: they denied all knowledge of how the property had come there. There was no evidence as to who the thieves were or as to how and when or from whom the accused had received any of the property. Prinsep and Pigot, JJ., in their judgment stated, “There is no proof against them save the fact that the goods found in their possession were stolen from different persons, and were found in their possession under such circumstances as to prove a guilty knowledge on their part. There is no proof as to their receipt of the goods; nothing to show that they received them at different times or from different persons. All the goods in the possession of each prisoner may have been stolen by the same thief, and may have been by him delivered to that prisoner at the same time, although stolen on different occasions. If each prisoner received the goods found in his possession together at the same time, that would constitute only one offence. There is nothing in the fact that the goods were stolen at different times, to constitute by itself proof that they were received at different times, or under such circumstances as to show that more than one offence was committed in receiving them”. Their Lordships, therefore, holding that there had been only one offence, set aside the second conviction on the ground that it was illegal in view of the provisions of Section 403 of the Criminal Procedure Code.
3. With regard to the first convicion their Lordships expressed the view that the only offence actually proved at all against the accused was one not of dishonestly receiving but of dishonestly retaining stolen property and they accordingly altered the first conviction changing it to one of dishonest retention. It is from this latter action that it has been argued for the respondents here that the same principle enunciated with regard to dishonest reception of stolen property is applicable with regard to dishonest retention thereof and it is contended that, if the principle applicable to both was not the same, their Lordships would not have set aside the second conviction at all but would have merely dealt with it as they did with the first: i.e., would have converted it into a conviction of dishonest retention. There is certainly some force in this argument for it would appear that later decisions have clearly adopted this principle in cases of dishonest retention. The first of these later decisions was in the case of Queen-Empress v. Makhan 15 A. 317; A.W.N. (1893) 101 : 7 Ind. Dec. (N.S.) 919 in which the facts were not unlike those in the matter now before this Court. Two parcels of stolen property, belonging to and stolen from two different parties A and B at different dates, were found at a search in Makhan’s house. He was first charged with dishonest retention of a shawl belonging to and stolen from A (section 411) and was convicted: whilst serving his sentence in respect of this conviction he was again charged under Section 411 with dishonest retention of other property; belonging to and stolen from B and was again convicted; from this second conviction he successfully appealed. The ground on which Makhan appealed was that the property which was the subject-matter of the second trial was his own. Aikman, J., however, set saide the second conviction thinking that the case was covered by the decision in Ishun Muchi v. Queen-Empress 15 C. 511 : 7 Ind. Dec, (N.S.) 925 cited above. The appellant was not represented at the hearing of the appeal and it would appear that no consideration arose as to whether the principle enunciated with regard to the dishonest reception of stolen property was applicable to the dishonest retention of stolen property: the learned Judge does not discuss any such question but seems to have assumed that the same principle was applicable in all cases both of reqeption and retention. In his judgment Aikman, J., observes: “The prisoner Makhan appeals against his conviction by the learned Sessions Judge of Meerut for an offence punishable under Section 411, Indian Penal Code. It appears from the record that on the 5th of September 1892, the prisoner’s house was searched by the Police in the presence of witnesses and certain property found to have been stolen was found in his possession. Amongst that stolen property was a shawl. For the dishonest possession of that shawl the prisoner was convicted by a Magistrate of the First Glass on the 7th November 1892 and was sentenced to nine months rigorous imprisonment under the provisions of Section 411, Indian Penal Code, which imprisonment he is now undergoing. The conviction against which he now appeals is in respect of the dishonest possession of certain other stolen property belonging to a different complainant which was found in his possession at the same, time as the shawl. In my opinion this second conviction cannot be sustained. The mere fact that property stolen on two different occasions from different persons is found at one and the some time in the possession of an accused person is not of itself sufficient to prove that that accused person has committed two different offences under Section 411 of the Indian Penal Code as it is quite possible that the property, though stolen on two different occasions, may have been received from the same thief at one time; vide Ishun Muchi. v. Queen-Empress 15 C. 511 : 7 Ind. Dec, (N.S.) 925. I am, therefore, constrained to allow this appeal.” It will be seen that the Judge simply deals with the case as if it was one of dishonest reception: the point raised now before us was in no way agitated. This case was followed by that of Ganesh Saha v. Emperor 73 Ind. Cas. 931 : 27 C.W.N. 554 : 37 C.L.J. 326; (1923) A.I.R. (C.) 557 : 50 C, 594 : 24 Cr; L, J. 707. The facts were, again, very similar in many respects to those in the case now before us. Several articles of stolen property were found in Ganesh Sana’s room he was first charged under Section 411, Indian Penal Code, in respect of the dishonest retention of some articles belonging to and stolen from A; he was convicted but on appeal acquitted. He was then charged again” under Section 411, Indian Penal Code, in respect of the dishonest retention of some articles belonging to B and was convicted: Newbould and Suhra-wardy, JJ., on appeal set aside the conviction by the following judgment: “The petitioner in this case has been convicted under Section 411, Indian Penal Code, on the charge of having been in dishonest possession of stolen property on the 7th December 1921. It appears that on that date several articles of property were found in the room occupied by the petitioner. In respect of some of them he was prosecuted and after being convicted under Section 411, Indian Penal Code, by the Trying Magistrate he was acquitted on appeal. He has now been tried and convicted in respect of other properties found in his possession on the same date. There was evidence that the different articles which were the subject of the charges in the two trials were stolen from different persons, but there is no evidence that they were received at different times. The facts of the case cannot be distinguished from those of Queen-Empress v. Makhan 15 A. 317; A.W.N. (1893) 101 : 7 Ind. Dec. (N.S.) 919 which follows the decision of a Divisional Bench of this Court in Ishun Muchi v. Queen-Empress 15 C. 511 : 7 Ind. Dec, (N.S.) 925. On this authority we hold that the second trial was illegal under the provisions of Section 403, Criminal Procedure Code.
4. It will be observed here that no idea of there being any difference in the principle to be adopted in cases of dishonest reception and dishonest retention was mooted: it was assumed that the principle was the same and the point now raised before us by the learned Government Advocate was not contemplated.
5. The distinction was, however, referred to and to some extent discussed in the case of Ram Sarup Bania v. Emperor 9 C.W.N. 1027 : 2 Cr. L.J. 847, though the point there arose for consideration in connection with a question with respeqt to how many different sets of stolen articles a person can at one trial be charged under Section 411 with having dishonestly received or retained. The circumstances, so far as they are material, are that the accused were charged in one count with having dishonestly received or retained eight sets of cooking utensils belonging to and stolen from eight different persons on eight different dates and with, thereby, having committed an offence punishable under Section 411, Indian Penal Code, they were convicted. There was another count in which the accused were charged with having aided and abetted each other in the commission of the offence detailed in the first count: but this is not here material. Their Lordships (Pargiterand Woodroffe, JJ.,) held that, as there was ho evidence that the acts of receiving or retaining were so connected together as to form one transaction, the charges framed and the single trial held with respect thereto were illegal: that the mere fact that there was no evidence of separate receipt or retention did not justify the joinder of the charges, “as it lay upon the prosecution to establish the facts which would justify such a procedure: and that the dishonest receipt or retention of each article constituted a, separate offence and the accused could only be tried for three of such offences committed within one year unless it were shown that the receipt or retention of all the articles was so connected as to form one transaction.
6. Now it will be noted that in this case the charge was an alternative one of receiving or retaining; that “it was contended by the Crown that, as all this stolen property was found in the accused’s possession at one time, it might be presumed, even though it was composed of proceeds of many different thefts from different people committed at different times, that the (receipts or) retentions were so connected as to form one transaction and that, consequently, at one trial, the accused could be charged with dishonest reception or retention of all the parcels (whatever their number) of stolen goods in view of the provisions of Section 235 (1) of the Criminal Procedure Code. But the Court held that no such presumption could be drawn against the accused. I getlier that the Court, and rightly, thought that if any presumption was to be drawn it must be in the accused’s favour; and, therefore, that the accused could only at one trial be charged in respect of three parcels of stolen articles in view of the provisions of Section 234 of the Criminal Procedure Code. The question as to whether the accused could be subjected to a second trial in respect of the retention of other parcels of stolen property not the subject-matter of the first was not in direct contemplation or argued, though Woodroffe, J., seems to indicate in one part of his judgment, that separate trials in respect of , each separate parcel of stolen property was the proper course of procedure: for he, observe (page 1028Page of 9 C.W.N.–[Ed]). “Upon information received to the effect that the accused’ were dealers in stolen property, their shop were searched on the 24th September last, some six cart load’ of utensils were found and removed to the thana., On the 28th September the accused were brought before the Magistrate. Separate, trials were instituted in his Court and in the Suburban Courts with reference, to the different articles of property above mentioned, which are said to have been stolen on eight different dates extending from about the beginning of the month of April to the 2lst September 1904. The learned Chief Presidency Magistrate says that this was done despite his pointing out at an early stage that there was no evidence of the separate receiving of such property on different occasions and that, therefore, one charge would he in respect of the whole mass, of the alleged stolen property. The initial procedure” (and here I under-stand Woodroffe, J., to refer to the institution of the several separate, trials) “was in my opinion the correct one and the, learned Chief Presidency Magistrate was in error in supposing that the mere fact (if it were so) that there was no evidence of separate receiving entitled him to frame the charge as he has done” It must, however, be, admitted that the question as to whether the accused could be subjected to a series of trials did not directly arise although in a later portion of his judgment he states as follows: “There ivas a separate, offence in respect of each of the articles alleged to have been dishonestly retained and only three of such offences could be charged and tried in one trial, unless it was shown that the dishonest retention of all the articles was so connected as to form one transaction.” The material parts of the judgments of the learned Judges may be with advantage quoted. Pargiter, J., observed; “The charges framed in this case are contrary to the law. They relate to the properties alleged to have been stolen in eight different thefts. There appears to be no evidence to prove that they were received at one and the same time. It cannot be inferred that because all the properties were found in the possession of the accused at the same time in circumstances which suggest that they were retained dishonestly, they, therefore, constituted one dishonest retention. It may be that the property stolen in one theft came into their hands by one transaction and constituted one dishonest retention; but the eight thefts are alleged to have been committed at various times during the period of nearly six months and the presumption would rather be that they came into the hands of the accused persons by different transactions. The finding then of all the properties in the accused person’s possession at one time would not operate to combine all the transactions into one whole so as to make one combined charge legal.” Woodroffe, J., remarks. “Upon information received to the effect that the accused were dealers in stolen property, their shops were searched on the 24th September last; some six cart loads of utensils were found arid removed to the thana. On the 28th September the accused were brought before the Magistrate. Separate trials were instituted in his Court and in the Subarban Courts with reference to the different articles of property above mentioned, which are said to have been stolen on eight different dates extending from about the beginning of the month of April to the 21st September 1904. The learned Chief Presidency Magistrate says that this was done despite his pointing out at an early stage that there was no evidence of the separate receiving of such property on different occasions and that, therefore, one charge would he in respect of the whole mass of the alleged stolen property. The initial procedure was, in my opinion, the correct one and the learned Chief Presidency Magistrate was in error in supposing that the mere fact (if it were so) that there was no evidence of separate receiving entitled him to frame the charge as he has done. It lay upon the prosecution to establish the facts which would justify such a charge. It cannot be upheld simply because there may be no evidence one way or the other. The receipt of each article constituted a separate offence and the accused could only be tried for three of such offences committed within one year unless it were shown that the receipt of all the articles formed one transaction. Not only has this not been shown, (there being admittedly no evidence on the point) but on the contrary in the present case the charges themselves and the evidence appear to me to indicate that the receiving did not take place at one and the same time, the thefts (in respect of two of which the accused are charged in the alternative with being guilty) having taken place on eight several dates between the beginning of April.and the end of September 1904. I have already dealt with the contention that, as there was nothing to show separate receiving the charge and trial as made and held should stand. The other point on which we were addressed by the learned Advocate-General was with reference to the charge of retaining, viz., that, even it there were separate acts of receiving, there was but one offence of dishonest retaining; or, if several offences, they constituted one and the same transaction. It was argued by learned Counsel for the accused that there was no distinction as to the time when the offience was committed between dishonest receiving and dishonest retention. This contention is, in my opinion, unsound. In the case of dishonest receiving the offence is completed when the stolen property is received, the receiver knowing or having reason to believe at the time that the property was stolen property, whereas in the ease of dishonest retaining the offence is committed not when the property is received but when after knowing or having reason to believe it is stolen, it is dishonestly retained. I think, however, that this distinction is not of importance upon the point with which we have to deal, for there was a separate offence in respect of each of the articles alleged to have been dishonestly retained and only three of such offences could be charged and tried in one trial, unless it was shown that the dishonest retention of all the articles was so connected as to form one transaction. This as I have pointed out in connection with the charge of dishonest receiving has not been done, and cannot in the absence of evidence be assumed.
7. “The mere fact that all the articles were being dishonestly retained on the day that they were discovered with the accused does not constitute a simple offence or establish that several offences were committed in one and the same transaction ” Imagine that the word “simple” here means “single” as opposed to multiple.
I must, therefore, hold that the first and second charge and the single trial held with respect thereto was illegal. I set the judgment and conviction aside and direct that the accused be charged and re-tried with respect to such offences as he may properly be charged with and tried under the provisions of the Criminal Procedure Code relating to the joinder of charges.
8. One thing at any rate of value emerges from this decision and that is that, where no evidence one way or other exists as to whether receipt of various parcels of stolen property took place at the same or different dates, no presumption can be drawn or assumption made as against the accused either that the offence of retention by the receiver constitutes one or more than one connected transaction. The prosecution cannot base its case or justify its procedure upon any presumption or assumption operating against an accused unless such presumption or assumption is grounded upon evidence. This decision is of importance for, if it is correct, an accused may plead either that his retention of various parcels of stolen goods was one transaction in which case he can obviously only be tried (under Section 403) once: or that such retention constituted a set of disconnected separate offences in which case he can (at one trial) only be charged in respect of three parcels (section 234) and could plead either way as it best suited him to meet in whatever way the charge was framed against him. But he could not plead both: and if he contended that his retentions were one transaction he could be charged at one trial with retention of the whole of the stolen property bunched and listed together: whereas if he pleaded the retentions were all distinct and separate offences, it is difficult to see why, as Woodroffe, J., indicates, separate trials should not be held in respect of each parcel of stolen property; for each retention then constitutes a separate and distinct offence and, provided the offence did not depend upon the same facts, he could not call in aid the provisions of Section 403 of the Criminal Procedure Code. The legal question, therefore, appears to me to resolve itself into very simple elements.
9. When the date or dates at which the various parcels of goods were received are not known to the prosecution, the date is not material in dealing with charges of retention upon which the prosecution is thrown back: and the prosecution, therefore, has to get on as well as it can without a date of reception. As no date of reception is known or can be proved the prosecution is confronted, with the difficulty that no presumption or assumption can be drawn against the accused; either that his retentions of the several parcels of stolen property constituted one transaction and that, therefore, he could be tried in respect of the whole property at one trial or that his retentions were composed of separate and distinct offences, each, offence relating to a particular parcel of stolen property; and it must be borne in mind that in whichever way the prosecution frames its charge against the retainer it may be met with the–to some extent–effective counter plea. For example, if the prosecution frames a charge on the presumption that the retentions constituted a set of independent offences, it must include only three parcels in respect of which the charge is made and the prosecution may then be met with the plea that these retentions in fact constituted one transaction and one offence; in which case the charge could be amended accordingly and the whole of the stolen property included in one single charge and the accused tried at one single trial. Similarly, if the prosecution chooses to prosecute (as it has done in this case) on several separate charges in several separate proceedings, directly one case is concluded and the accused is convicted or acquitted, the plea, which has been advanced in this case here will of course, at once be put forward: namely, that the accused can take the benefit of the provisions of Section 403 of the Criminal Procedure Code on the ground that the retentions constituted a single transaction and a single offence; and no presumption or assumption to the contrary can be raised as against the accused. It is obvious, therefore, that the only safe course to adopt, in cases of this character where no date of reception is known or can be proved by the prosecution, is to take advantage of the first course which I have indicated. This course, whilst giving the accused the advantage of not being injured by the inclusion in the count of a very large number of parcles of stolen property, (a course which might affect him prejudicially if his case was, being tried before Assessors or a Jury and the avoidance of which is really the object of Section 234 of the Criminal Procedure Code, prevents the accused from objecting effectively in any way to the trial; for if he contends that the whole matter is but one transaction and one offence then the charge can at once be amended to include the whole of the property. In the present case the prosecution has (unwisely perhaps) chosen to embark, upon three separate proceedings when, as the Sub-Divisional Officer points out, a single trial, dealing with all the three parcels of stolen property, could with safety and propriety have been set on foot. The two accused have already been tried for the offence of the retention of stolen property (carpets) found, in their possession at the same time as were the stamps, the subject-matter of this, the second trial; that one has been acquitted and the other convicted makes, no difference. Their plea is that they, have already been tried at the first trial with the same offence as that with which they are now charged in this the second trial; they, in effect, claim the presumption in their favour that their retention of all these goods was one offence, and one transaction: and to the benefit of this presumption they are entitled.
10. It my be suggested that as the articles recovered from their possession were of very diverse character the offences of the dishonest retention of each set of articles, were distinct offences. This suggestion, however, appears to be negatived by the definition of what is the same offence as defined in Sub-section (2) of Section 234 of Cirminal Procedure Code. It is there prescribed that offences are of the same kind when they are punishable with the same amount of puishment under the: same section of the Indian Penal Code. In the case of the charges of retention, of the three sets of articles which have been, made the subject-matter here of three separate proceedings the offences are clearly of the same kind as defined above and whilst Section 234, Sub-section (1), of the Code allows a person to be charged with and tried for three offences of the same kind at one trial, which have been comitted within the space of 12 months from the first to the last of such offences, Section 403, Sub-section (1), of the Code clearly, lays it down that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence, shall, while such, conviction or acquittal remains in force, not be liable to be tried again for the same offence, That statement of the law would, therefore, appear to dispose of the matter. It is true that Section 403, subsection (I), provides a further loophole for an accused by prescribing that a person shall not be liable to be tried again on the name facts for any other offence for which a different charge from the one made against him might have been made under Section 236 or for which he might have been convicted under Section 237; but neither of these two sections are in any way relevant to the matter which is displayed by the present circumstances. It is true that, in order to support a charge of dishonest retention of stolen property, there has to be given in proof of the retainer’s guilty knowledge such a set of circumstances as, to persons of ordinary understanding in the situation of the accused persons, must have led to the conclusion that the property retained by him had been stolen or otherwise dishonstly acquired; and it need hardly be said that the nature of the property itself may be a factor of no little importance in many cases, whilst consideration may also well be paid to the nature and value of the property in relation to the accused’s business and position in life; but such features do not change the character of the offence but are only parts of the evidence which has to be adduced in order to obtain a conviction in respect of the offence: such factors are, therefore, not material in considering the point which has arisen in this appeal. Somewhat similar considerations appear also to govern the bearing of Sub-section (2) of Section 403 of the Criminal Procedure Code upon the decision of the Sub-Divisional Officer. This sub-section provides that a person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, Sub-section (1), and on reference to Section 235, Sub-section (1), it will be seen that that sub-section lays it down that, if in one series of acts so connected together as to form the same transaction more offences than one are committed by the same person, he may be charged with tried at one trial for every such offence. There are, however, two bars to the applicability of the combined provisions of these sub-sections to the circumstances of the present case. In the first place if the acts of retention are regarded as the same transaction, certainly only one offence was committed by the accused, viz., that of the dishonest retention of stolen property; whilst, in the second place, it is also equally clear that if the series of acts of retention did form the same transaction there was no distinct offence as apart from- -dishonest retention of stolen property for which any separate charge could have been made against the accused under Section 235, Sub-section (1). Nor, indeed, in the absence of some proof, can any presumption or assumption be made against the accused, either that the retentions of the different sets of articles constituted separate offences or formed a series comprising one transaction. For these reasons, am of opinion that in this case the Sub-Divisional. Officer has come to a correct conclusion and that the appeal must be dismissed. I should like, however, to point out that the dire results which are contemplated by the Sub-Divisional Officer as likely to occur as a result of his decisien by no means necesr sarily need follow. If property is found in the possession of an individual which is alleged to be stolen property and if a charge embodying three parcels-of such stolen property is preferred against the retainer and the retainer is convicted or acquitted it by no means permits him to maintain possession of other property found in his possession which persons other than he claim as their own; and, although it may be that he cannot, in respect of that other property, be further criminally proceeded against, the rightful owners have a civil claim for recovery which can be enforced in a simple manner. At the same time I wish to guard against it being-understood that I should support any suggestion that there is any warrant for handing over by any authority, other than through the medium of a Court, property not included in the criminal proceedings to persons who allege that such property has been stolen from them and is in the wrongful possession of the party in whose possession it has been found: any such suggestion would obviously be open to the very gravest abuse.
11. Adami, J.–I agree.