EMPEROR Vs. LAKHA AMRA

JUDGEMENT

(1.) THIS is an appeal by the Government of Bombay. It appears that the accused were charged with offences under Section 457 and 330 of the Indian Penal Code, that is to say, with theft, and they were also charged in addition or in the alternative with offences under Section 411, that is to say, with receiving stolen property. The learned Sessions Judge of Kaira held that there was not sufficient evidence upon which to convict them of theft. But it would appear from the evidence-and the assessors were all satisfied-that in fact the accused were all in possession of property which had been stolen on the particular occasion on which it was alleged that they had stolen it. They were in possession of the stolen property but there was no evidence that they themselves had stolen it. The learned Judge refused to record any finding under Section 411, because he held that the accused could not be tried jointy under that section. He refers to two cases, Emperor V/s. Jethalal, s.c. 7 Bom. L.R. 527 and Abdul Majid V/s. Emperor (1906) I.L.R. 33 Cal. 1256 and then he says: " There is no evidence whatever to show that the receipt by these various accused of the property found with them was the result of one and the same transaction; or in other words, the possession of that property was transferred by one offence ", and he then refers to Clause (f) of Section 239 of the Criminal Procedure Code. Now that section provides that "the following persons may be charged and tried together, namely, persons accused of offences under Secs.411 and 414 of the Indian Penal Code or either of these sections in respect of stolen property the possession of which has been transferred by one offence." That section seems to me not very artistically worded. But I think the phrase " possession of which has been transferred by one offence" is a reference to the original theft of the stolen property. Now hers the property was originally stolen on one occasion, and, I think, therefore this case falls exactly within the words of Section 239(f). The learned Government Pleader has referred use to the case of Musammat Guljania V/s. King-Emperor (1927) I.L.R. 6 Pat. 583, in which the Court took the same view of Section 239(f) as I am taking. I think, therefore, that the learned Sessions Judge was wrong in holding that the accused could not be tried jointly under Section 41.1, and that the case must be referred back to hi m to record a finding on that charge and to dispose of the case according to law, Broomfield, J.

(2.) I agree.