Full Judgment
1. It is unnecessary to discuss the facts of this case in this appeal, as we are of opinion that, the trial was bad for misjoinder of charges, and we propose to order a re-trial of the appellant. At the trial the present appellant Chetto Kalwar and one Jug Mohan Kalwar were jointly tried. Twelve charges were framed against them. In the first, Chetto was charged with wrongful possession of two items of stolen property on the 25th of March 1921. In the second Jug Mohan was charged with having abetted that offence. In the third charge Chetto was charged with being in wrongful possession of three items of stolen property on the 27th of March, 1921 and, in the fourth charge, Jug Mohan was charged with having abetted that offence. In the fifth charge, Chetto was charged with being in wrongful possession of eleven items of stolen property on the 31st of March 1921 and, in the sixth charge, Jug Mohan was charged with the abetment of that offence. Then, in the remaining charges Chetto and Jug Mohan were each separately charged with having assisted in the disposal of the stolen properties referred to in the six previous charges. When writing his judgment the Magistrate held that there should not have been a joint trial of the two accused and acquitted Jug Mohan. He also held that it was safer to proceed against the first accused Chetto under the three heads of Section 415, Indian Penal Code, only, and to forego those under Section 414, Indian Penal Code. In the end, he convicted the appellant on the first and third charges and, with reference to the facts stated in the fifth charge, he held that an offence punishable under Section 54A of the Calcutta Police Act had been committed.
2. We think that the joinder of the charges of offences under Section 411, Indian Penal Code, with charges of offences under Section 414, Indian Penal Code, was bad. Had the charges been framed in the alternative, this might have been within the terms of Section 236, Criminal Procedure Code. But as the charges were; framed, they were not in the alternative and the mistake cannot be corrected by the argument that, they had been in the alternative, there would have been no defect in the trial. Having framed defective charges, the Magistrate could, not remedy the error at the conclusion of |the trial, by saying in his judgment that he would only proceed on the charge that had been legally joined. If he wished to strike out any of the charges he should have done so before concluding the trial, and should have given the accused an opportunity of making such defence as he thought fit on the charges as amended. Not having done so, we must hold that the error vitiated the trial and made the conviction illegal. We, accordingly, allow this appeal, reverse the conviction and sentence of the appellant, and direct that he be re-tried according to law. We are asked to order that the re-trial be taken place before another Magistrate, and no objection is taken to this on behalf of the Crown. We, accordingly, direct that the re-trial do take place before such other Magistrate as the Chief Presidency Magistrate may select.