JUDGMENT

1. This was a Rule calling upon the District Magistrate of Howrah to show cause why the conviction and sentence passed upon the petitioner u/s 205 read with Section 109 of the Indian Penal Code should not be set aside on the ground that the case falls within the rule laid down in the cases of Queen Empress v. Pahuji. 19 B. 195 and Queen Empress v. Paltua 23 A. 53. In the first case cited, A and B were charged with murder. A pleaded guilty and it was held that after such plea he could not be treated as being jointly tried with A.

2. In the second case it was held that when several persons are being tried jointly for the same offence, and some of them plead guilty, it is unfair to defer convicting those who have pleaded guilty merely in order that their confessions may be considered against the other accused.

3. In showing cause the Magistrate has pointed out that both these cases may be distinguished from the case before us, inasmuch as the plea of guilty made by Sarat Chandra Dutt was not accepted in view of the fact that the petitioner Sukdeb Tewari's defence if proved would involve the innocence of Sarat Chandra Dutt and he could not be convicted. The joint trial, therefore