ORDER
Spencer, J.
1. It is contended that in this case there has been a misjoinder of charges and I find the contention to be sound.
2. It appears that house breaking and theft occurred in two villages 4 miles apart on two successive nights. The 1st accused was charged with house breaking by night and theft, and the 2nd accused, his concubine, was charged with house breaking by night and theft or in the alternative with receiving Stolen property.
3. Seeing that no witnesses came forward to say that they had seen the thieves in the act of committing the offences of house breaking and theft it is not clear why the male prisoner was not also charged in the alternative under Sections 457 and 380 or Section 411 of the Indian Penal Code, but perhaps, the Magistrate may have considered that the female prisoner was less likely to have taken an active part in the theft and house breaking.
4. Be this as it may, there is nothing to suggest that the breaking and theft at Nallapu Reddi Pallai was part of the same transaction as the house breaking and theft at Tadigotla and we must therefore take it that they were two separate transactions.
5. Now as pointed out in Baudhai Sheik v. Emperor (1905) I.L.R. 33 C. 292 which had been followed by decisions of this Court Section 239 Criminal Procedure Code is the section of the Code which deals with the trial of more persons than one and it permits them to be tried jointly for the same offence or for different offences committed in the course of the same transaction, but not for different offences committed in the course of different transactions.
6. In the present case the Prosecution Witnesses 1 and 2 identified a cloth (material object I) as one that had been stolen from the house of Prosecution Witness 1 at Tadigotla; and Prosecution Witness 3 identified a Jewel (material object II) as one that had been stolen from his house at Nallapu Reddi Pallai. The two accused were tried for different offences in respect of these two articles stolen on different occasions, a procedure which tended to cause complication besides being unwarranted by law.
7. The charge is also bad for vagueness, as it does not specify the article stolen or the name of the person whose house was broken into, and the place of offence is given only as Tadigotla whereas the trial was for offences committed both at Tadigotla and at Nallapu Reddi Palli.
8. We accordingly set aside the convictions and sentences and direct that the accused be retried on charges properly framed by such Magistrate as the District Magistrate of Cuddappah may direct other than the Magistrate who has already tried the case.
Seshagiri Aiyar, J.
9. I entirely agree. The alleged thefts were on two different dates in two different villages. The stolen property was recovered two days after the second theft. The Public Prosecutor has not argued that these three incidents relate to the same transaction. Under Section 233, there should be separate charges and separate trials, unless any of the exceptions contained in Sections 234 to 239 apply. The appellate Magistrate while conceding that the joint trial and joint charge were irregular has held that as the irregularity has not been shown to have prejudiced the accused, the proceedings need not be set aside.
10. It was pointed out in Subramania Aiyar v. King Emperor (1901) I.L.R. 25 M. 61: s.c. 11 M.L.J. 233 that “disobedience to an express provision as to a mode of trial” was not a mere irregularity. Following this dictum, the learned Judges of the Calcutta High Court in Raman Behari Dan v. Emperor (1914) I.L.R. 41 C. 722 held that Section 233 must be strictly applied save where the Code itself provides exceptions. The language of the section is imperative and I am unable to agree with the Court below that the disregard of a plain duty cast by law on the Magistrate can be condoned with reference to Section 537. See Emperor v. Maha Prasad (1901) I.L.R. 30 A. 351 and Gobind Koeri v. Emperor (1902) I.L.R. 29 C. 386 : 6 C.W.N. 468.
11. I have already stated that the joinder of the charge of theft with that of receiving stolen property, not in the alternative, but cumulatively is not countenanced by the Code. It may be argued on the analogy of the decision in Musai Singh v. Emperor (1913) I.L.R. that this defect can be cured as the irregularity related only to the failure to frame distinct charges. It is also doubtful whether the two offences may not be said to arise out of the same transaction. See however Munendro Nath Das Gupta v. Emperor (1902) I.L.R. 29 C. 387. But there can be no doubt that the trial of the 1st accused with the second accused who was only charged with an offence under Section 411 of the Penal Code is illegal. Section 239 which permits of a joint trial of more than one accused does not cover this case. See Emperor v. Jethalal Hurlochand (1901) I.L.R. 29 B. 449. I agree in the order proposed by my learned colleague.
