Full Judgment
Tudball, J.
1. The two appellants, Umed Singh and Tilok Singh, were tried at one and the same trial in the Court of the Deputy Commissioner and District Magistrate of Almora on ten distinct charges of offences under Section 161, Indian Penal Code. Of these ten charges, two might possibly be said to be part and parcel of the same transaction. The remainder were distinct and separate offences. Briefly put, the fact alleged by the prosecution are as follows: A theft or series of thefts had taken place at the house of General Wheeler of Jalna. The two appellants were ordered to investigate and the case against them is that they arrested people and then after extorting money from them, allowed them to go. The District Magistrate has held that six of the charges are proved and has convicted and sentenced the appellants thereon. It is quite clear that the trial is an illegality and that the convictions and sentences must be set aside. The ruling of the Privy Council in Subrah mania Ayyar v. King-Emperor 25 M. 61 (P.C.) : 28 I.A. 257 is clear upon this point. The Court ought to have selected three of the charges against the appellants and to have tried them on those charges only, at one and the same trial. As the trial ended in a conviction I must order the retrial of the appellants according to law. The charges must be divided into several batches of three or less in number and each batch must form the subject of a separate trial. The appellants will have to surrender.
2. As the Magistrate who tried the case has already formed an opinion on the evidence on the record and has expressed the same, it is only fair to the accused that they should be tried by another Magistrate, who has, formed no opinion. I, therefore, order that the case be tried by Mr. Shaw, Deputy Magistrate of Almora, who has first class powers.