OSMA MISTRY Vs. ATUL KRISHNA GHOSH

JUDGEMENT

(1.) THIS rule has been obtained by two persons who have been convicted of having com. mitted theft by the learned Magistrate, Sri S. C. Mukherjee, exercising first class powers at Diamond Harbour. On appeal the Additional Sessions Judge, 24 Parganas, upheld the order of the learned Magistrate with respect to the two -petitioners. Six persons were tried by the Magistrate and convicted. Four of these six were acquitted by the lower appellate Court. The sentence passed on the petitioners consists of a fine of RSection 100 each, in default rigorous imprisonment for a period of four months.

(2.) HAVING regard to the order which I am about to pass it will not be necessary to state the facts in full. The case was argued with commendable fairness on both sides. Mr. Mukherjee appearing to oppose the Rule was of great assistance to this Court in determining the questions of law involved. The facts briefly are these : There is a plot of land which is being claimed on the one hand by Atul Krishna Ghose and Ors. and on the other by Osman Mistry and others. Proceedings Under Section 144, Criminal P.C., were Btarted and an order was passed prohibiting both parties from entering upon the land. Thereafter, it is said, three persons namely the two petitioners (Osmau Mistry and Jane Alam Mistry) and one Akkas Ali Molla went on the land and cut the paddy thereon in spite of the prohibitory order. Six days after this these three persons together with three others again went on the land and cut and took away the paddy therefrom. On these facts two cases were started in respect of the two occurrences and the charge against the accused in each of these cases was a charge of theft. Thereafter the learn, ed Magistrate, to use his own words, amalgamated both the cases and tried both the cases together as a single case and passed a judgment finding all the sis persons guilty of the offence of theft. On appeal, as I have said before, four persons were acquitted and the conviction of the two petitioners was upheld.

(3.) THE next point urged is that the trial is illegal inasmuch as there was a joinder of two offences which could not under the law be joined. This ground is perfectly sound. There is no provision in the Code of Criminal Procedure for amalgamating cases. The sections relating to the joinder of charges and the joinder of persons nowhere permit of the procedure adopted by the learned Magistrate. The first offence was committed by three persons. The second offence was committed six days thereafter by those three persons and three others. These two offences cannot be joined under any of the provisions of . the Code of Criminal Procedure. The trial is therefore illegal on this ground.