EMPEROR Vs. AMOLAK MULCHAND

JUDGEMENT

(1.) THE Forest Range Officer, Alegaon, in the Akola District put up 13 persons before the Tahsildar and Magistrate, Second Class, Balapur, for trial of an offence under Section 26 (d), Forest Act, for having on 9th October 1931, illicitly grazed their cattle in the C class forest of the village Pimpalkhute. The trying Magistrate convicted all the accused but on appeal the appellate Magistrate set aside the convictions of the accused 1 and 8, but confirmed those of the others excepting Gania, accused 9, who did not appeal. The convicted persons except Gania applied in revision to the Additional Sessions Judge, Akola, who has reported the case to this Court under the provisions of Section 438, Criminal P. C., with a recommendation that the joint trial of all the accused being illegal their conviction was bad in law and should be set aside, the more so since the confession of one of the accused was used as evidence against the others.

(2.) ON a rule being issued to the District Magistrate to show cause why the reference should not be accepted the learned Magistrate, in reply, states that since the provisions of Section 239, Criminal P. C., do not apply to summons cases, the joint trial of the 13 accused in the present case which was tried as a summons case had not the effect of vitiating the trial. The learned Government Advocate very properly does not support this contention. Having carefully gone through the record I entirely agree with the learned Additional Sessions Judge that there is no evidence on the side of the prosecution to prove that there was any prior consultation or community of purpose amongst the accused so as to justify their joint trial under Section 239, Criminal P.C.: Samiullah Sahib, In re AIR 1927 Mad 177.