Mt. Guljania vs Emperor

Mullick, J.—(The judgment of the Court proceeded as follows.) The first point urged before us to-day is that the joint trial of the three accused was bad in law and a very careful argument has been submitted to us by the learned Counsel on behalf of the petitioner on the meaning of Clause (f), Section 239, Criminal P.C.

It is urged that this clause contemplates that receivers of stolen property cannot be tried jointly unless they received the goods from the thief by one act of transfer. It is urged that the words

in respect of stolen property the possession of which has been transferred by one offence

refer to the transfer of possession from the thief to the receivers and not to transfer of possession from the true owner to the thief. The section has not been very clearly drafted; but we think, on the whole, that it refers to transfer of possession from the true owner to the thief.

The following cases may arise when stolen property is found in the possession of different receivers. There may be one theft and the several receivers may have received the property jointly, i.e., at one and the same time; there may be one theft and the several receivers may have received the property at different times; there may be two or more thefts and the several receivers may have received the property jointly; there may be two or more thefts and the several receivers may have received the property at different times.

It was clearly unnecessary for the legislature to legislate for the joint trial of persons to whom property has been transferred jointly, that is to say, when one receiver receives the property as the agent of another. In such a case, whether there is one or more than one theft, the receipt of the goods is the act of one person and a joint trial is clearly permissible. Nor is it conceivable that the legislature intended to enact that there should be a joint trial of receivers who have received at different times goods stolen at different thefts. There is no community of purpose between the receivers and there is no reason for providing for the joinder of parties in such a case.

But the case in which there is one theft and the property has passed to the several receivers at different times required legislation, because it had been held in several High Courts that a joint trial was illegal. It was thought a multiplicity of trials should be avoided and, therefore, Clause (f) was inserted into the Code of 1923. The statute practically declares that the different acts of receipts are one and the same transaction if the transfer of possession from the owner to the thief was made by one and the same act. Whether the word "transfer" is appropriate to the change of possession in such a case may be open to argument but I think this is the only construction which can be reasonably given to the statute.

In this view of the case the joint trial of Mt. Sarjania, Guljania and Bouku was legal, provided there was prima facie evidence to support the case that the articles were stolen in the course of one and the same theft. Now it has been urged by the learned Counsel that there is no express finding to this effect. The learned Sessions Judge expresses the opinion that although no direct evidence has been adduced on the point the probabilities are that the articles were stolen at one and the same time. At any rate there is nothing to indicate the contrary. The steel trunk and the wooden box and the other articles were all in the palace when the proprietor left it in December. The smaller articles could have been removed and were in fact found in the boxes, and we agree with the learned Judge that the removal was made in the course of a single theft. Upon the evidence the trial Court was right in holding a joint trial.

The next point urged is that there is no clear evidence that the properties alleged to have been found in the possession of Guljania were in her exclusive possession. Now, it is true that in the trial Court she claimed that some of the articles of clothing had been given to her by her mistress; but that defence does not cover the steel trunk and some of the other valuable articles found in the trunk. Her defence with regard to them is that while she was living in the house at Pahi Tola some men in the service of the Maharaja of Darbhanga brought the trunk and the clothing contained therein to her house, and, saying that the Maharani had sent them, put the articles into the room ordinarily occupied by Sarjania. Evidence was given in the trial Court that Sarjania was living at Darbhanga and that she only goes at intervals to her house at Pahi Tola and that during her absence the room in which the articles were found and which had only a thatch door was not used. The question whether the articles were in the joint possession of Sarjania and Guljania or in the separate possession of Guljania does not require discussion because Guljania''s case is that she alone was in the house at the time when the trunk arrived and that the goods were forced upon her and that she had no idea that the articles which had not been given to her were in the box. No attempt has been made to show that the steel trunk was sent, as alleged, by the Maharani of Darbhanga and left in her house against her will or that she was in any way deceived into accepting the box and its contents. It is an unlikely story in itself and the finding of the Court is that she was well aware that both the box and its contents were stolen property.

There can be no doubt that she dishonestly retained property knowing it to be stolen. Finally, a point was taken that the petitioner was prejudiced in her trial, because she was not permitted to examine as witnesses the two Maharanis of Darbhanga. It is said that she desired to prove that some of the articles in the box had been given by the Maharanis to her as presents in the course of her service. That defence, however, would not cover the case of the steel trunk and some of the other articles of clothing, and her defence with regard to these articles could not have been in any way, improved by the examination of the ladies. The learned Sessions Judge has taken the view that the application for the examination of the ladies was made for the purpose of vexation and delay. We think there is some reason for such a view. In any event so far as the material part of the charge is concerned, namely, the steel trunk and the valuable items of clothing, it has not been shown that there has been any prejudice by the omission to enforce the attendance of the Maharanis of Darbhanga. The result, therefore, is that the conviction and sentence must be affirmed and the application dismissed.

Scroope, J.

I agree.