JUDGMENT

Mosely, J - One Abdul Rahman was tried under Section 379, I.P.C. for theft. The property alleged to be stolen was found in the possession of one Indra Singh who said that he had bought it from the present applicant in revision, Intaj Khan. Intaj Khan in his turn said that he had bought it from the accused Abdul Rahman. Abdul Bahman alone was sent up for trial. Indra Singh and a group of witnesses were cited to prove the sale to Indra Singh by Intaj Khan. A second group of witnesses was produced to prove the sale to Intaj Khan by Abdul Bahman. This was the only substantive evidence of theft. After the second group of witnesses had been examined the Magistrate found that the ease could not be properly decided without the addition, of Intaj Khan as co-accused, and ordered him to be tried together with Abdul Bahman. It was then ordered that the prosecution witnesses be recited. The Magistrate acted under the provisions of Section 351, Criminal P.C. It is argued in revision that the Magistrate had taken cognizance of the ease against Intaj Khan under Section 190, Sub-section 1 (c), Criminal P.C. and that the new accused therefore was entitled to have the case tried by another Court under the provisions of Section 191, Criminal P.C. This contention has no substance whatever as has frequently been pointed out by this Court. I need only refer to the Full Bench decision in Nga Chan Tha v. Emperor A.I.R. 1923 Rang. 31. It is on all fours with the present case.

2. It is however also argued that a joint trial would be prejudicial to Intaj Khan and I consider that this contention is well-founded. So far as I understand the case, (for Abdul Bahman has not yet been examined), there is no allegation that one accused was the thief and the other his assistant or the receiver. It would appear that if Intaj Khan's witnesses are believed Abdul Rahman will be found to be the thief, and if Intaj Khan's witnesses are disbelieved, then the burden of accounting for the possession of the property will be on Intaj Khan.

3. It has long been held, vide for example Azimuddin v. Emperor (1913) 7 L.B.R. 68 and Kyaw Dwe v. Emperor A.I.R. 1923 Rang. 67, that two persons accused of an offence ought not to be tried together if the prosecution cases against them are mutually exclusive. The addition in 1923, subsequent to those decisions, of Sub-section (e), Section 239, Criminal P.C. which provides that persons accused of theft and of receiving or assisting in the disposal of stolen property may be tried together does not appear to me to make any difference in this respect.

4. For these reasons it will be directed that the order of the Magistrate taking cognizance of the case as against Intaj Khan be set aside and that the Magistrate be directed to proceed with the trial of Abdul Rahman alone. If it subsequently appears that Intaj Khan is the proper person to be proceeded against it will be open to the Magistrate to initiate fresh proceedings against Intaj Khan.