ORDER
1. The learned First Additional Sessions Judge, Dharwar has made this reference in regard to proceedings in six criminal cases pending before the Judicial Magistrate, First Class, Third Court Cadag. The reference was made in consequence of revision petitions filed in each of the cases by the same person, Ranganagowda, who was arrayed as an accused in each one of the cases. The circumstances leading to the revision petitions are narrated in the order of the learned Judge resulting in the reference. In brief, it may he stated that in the course of investigation of a complaint of theft, the house of Ranganagowda was searched on 15-7-1952 and a large number of articles were seized.
On the basis of the identification of articles by various persons who had laid complaints before the Police in respect of thefts alleged to have taken place from 25-6-1949 onwards the Cadag Town Police placed ten charge-sheets against Ranganagowda and others. While Ranganagowda figured in each one of the charge sheets, the others who were arrayed as accused with him in the several cases varied. All the accused were discharged in three of these cases and Ranganagowda was acquitted in another. He was convicted in each of the other six cases.
Alternative charges appear to have been framed against the accused in each of these cases, i.e., for criminal trespass and theft or for being found in possession of stolen property, i.e., for an offence under Section 411, I.P.C. He preferred appeals against these convictions. The appeals were heard together and a contention was put forward on behalf of Ranganagowda that since he had been charged under Section 411, I.P.C., for being in possession of stolen property, knowing it to be stolen, i.e., retaining stolen property and since the retention of the various items did not constitute different offences only one charge should have been framed against him as there was no evidence to show that he had received stolen articles on different dates and occasions.
This contention commended itself to the learned appellate Judge. He thereupon set aside the conviction and sentence in each of the cases and sent back the records to the Court below for retrial and disposal according to law. The learned Magistrate on receipt of the records took the cases again on his file, altered the charges and issued process to the other accused also who had been discharged or acquitted and appears to have decided to adopt the procedure as laid down in the Criminal Procedure Code as amended by Act XXVI of 1953, i.e., the procedure under Section 251-A.
Thereupon Ranganagowda raised several objections. He urged that the appellate Court’s order restricted the scope of the retrial, that the other accused who had been discharged or acquitted should not again be brought on record as it was
likely to cause prejudice to him, that the charge also should not be altered and that the old procedure should be adopted. After hearing both the parties, the learned Magistrate held that the other accused had also to be brought on record as there could be no partial retrial, that the amendment of the charge was in order and that the procedure under Section 251-A, Criminal procedure Code, would expedite the hearing of the cases.
Against this order which was applicable to alt the cases Ranganagowda preferred Revision Petitions before the Sessions Court. It was also contended before him by the learned Advocate for Ranganagowda that by virtue of Ranganagowda’s acquittal in one of the other cases, i.e., C. C.1582/ 1952, the prosecution in any of the other cases could not stand by virtue of Section 403, Criminal Procedure Code, and that the proceedings had to be quashed.
The learned Judge took the view that at that stage he could not hold that the trial was barred under Section 403, that the Magistrate should not have issued process against the accused who had been acquitted in the other cases, that the old procedure should have been followed, that the charge should not have been amended and that the retrial should be confined only to the ambit of the order previously passed in the criminal appeals. He has accordingly made this reference.
2. The learned Assistant Advocate General not only supports the reference in regard to process having issued to the accused who had been acquitted but says that there was no justification for proceeding again with the cases in respect of the accused who had been discharged. He also supports the reference in regard to the procedure to be adopted, i.e.. he agrees that it is the old procedure that is applicable to the retrial.
He, however, does not support the reference to the extent that the learned Sessions Judge says that the charges should not have been amended. On the other hand, the learned Advocate for the accused Ranganagowda not only supports the reference on all points but urges that the proceedings should have been quashed in consequence of the acquittal in C. C. No. 1582/52 as Section 403, Criminal Procedure Code, and Article 20, Clause 2 of the Constitution applied to these cases.
3. Taking the last point, it is difficult to see how the retrials are barred by the acquittal of the accused in another case. It is no doubt true that the charge sheet was placed against the accused in consequence of the seizure of the various articles from the house of accused Ranganagowda. But whether the acquittal in that case bars other cases depends upon the circumstances of that case as also the circumstances of each of these cases.
It is seen from the judgment of acquittal that the learned Magistrate gave the accused the benefit of doubt in regard to the identity of the article alleged to have been stolen in that rase. Different articles are involved in each of the cases on hand and even though they may also have been seized on the same occasion, it docs not necessarily follow that the same considerations would apply. This contention on behalf of the accused cannot, therefore, be accepted.
4. As regards the retrial proceeding against the accused in the several cases, who had been acquitted is concerned, there can be no doubt that in the face of Section 403, Criminal Procedure Code, they cannot he tried) again.
5. In regard to the question of proceeding with the trial of the accused, in the several cases, who had been discharged, it is no doubt true that technically there is no bar. But, it is well settled that in the absence of fresh, material which was not accessible before or where in regard to the production of new material the prosecution has not made out a proper case there should be no fresh proceedings, vide, Emperor v. Alias, 31 Cri LJ 687: (AIR 1929′ Sind 242) and AIR 1949 Bom 384.
It is not contended for the prosecution that there is any such material, much less that such material was not previously available. Hence, quite apart from the question whether Ranganagowda will be prejudiced in any manner by the inclusion of those accused in the retrial, it seems to me that there is no justification for bringing those accused again before Court. The learned Magistrate’s view that there cannot be a partial retrial is based on the assumption that all the persons who have figured as accused originally should figure against the retrial.
It must he remembered that the normal rule is that there should be a separate trial in respect of each offence and each accused. It is only by virtue of the enabling provisions of the Criminal Procedure Code that a joinder of charges or of accused becomes possible. If some accused are omitted from the retrial it does not necessarily affect the integrity of the trial against the accused who is proceeded against. There is no circumstance in this case to show that the inclusion of the other accused is necessary for a proper retrial.
6. The question of the propriety of the amendment of the charge has to be considered in the light of the judgments in the criminal appeals which have resulted in the retrial. It is seen from the judgment jn Criminal Appeal No. 88/56, which is the main judgment, that the contention put forward on behalf of Ranganagowda was that only one consolidated case should have been launched against him for the reason that there was no evidence to show that be received the stolen articles on different dates and occasions and not on one and the same occasion. The learned Judge thought there was much force in this contention.
He says that the burden was not on the accused to show that he received all the stolen property traced to him at one and the same time, hut on the prosecution, and that, in the absence of such evidence, more than one prosecution of the accused under Section 411, I.P.C. would be unsustainable. At the same time, he accepted the contention put forward on behalf of the prosecution that as this ground had not been urged by the accused in the Court below the prosecution should be given an opportunity of showing that the accused had received the various stolen articles on different occasions.
It was for this reason that he sent the case back to the Court below for retrial. It is therefore clear that if the object of the retrial ordered by
the learned appellate Judge is to be fulfilled, there must be an appropriate charge in each of these cases to enable the prosecution to make out its case. I see nothing in the appellate judgment which precludes the learned Magistrate from re-framing the charge ia each case.
7. The learned Advocate for the accused Ranganagowda has relied upon the decisions reported in Sheoparson Singh v. Emperor, AIR 1928 Pat 50 and Virumal Seoomal v. Emperor, AIR 1941 Sind 144 in support of the position that the retrial can proceed only from the point at which the error in the trial has been committed. It will be seen from a perusal of those decisions that they lay down no such proposition. All that they say is that Section 423(1) (b) authorises a retrial from the point at which the error in the trial has been committed. They do not say that the retrial must necessarily be confined in scope in that manoer.
On the other hand, it may very well happen that such a restriction may often prejudice the accused himself. I, therefore, see nothing wrong in the learned Magistrate modifying the charges. Further, in the light of what is stated above, in regard to the cases not being proceeded with against those accused who have been acquitted or discharged during the earlier proceedings in these cases, it will be necessary for the learned Magistrate to consider the question of framing appropriate charges again.
8. As regards the procedure to be adopted, the learned Sessions Judge opines that the learned Magistrate was wrong in adopting the new procedure according to the amended provisions of the Criminal Procedure Code. The learned Judge’s view is clearly right. Section 110, Clause (c) of the Code of Criminal Procedure (Amendment) Act, 1955, mentions Section 251-A also amongst provisions which shall not apply to, or affect, any inquiry or trial before a Magistrate in which the Magistrate has begun to record evidence prior to the date of the commencement of the Act and that every such inquiry or trial shall be continued and disposed of as if the Act had not been passed. It follows that the retrial has to be governed by the procedure as it stood prior to the amendment.
9. The cases are accordingly sent back to the Court of first instance for disposal according to law in the light of what is stated above.
10. Cases remanded.
