P L D 1960 Dacca 499 (PLP)

2. They preferred an appeal against their aforesaid convic tion and it appears that it was argued before the learned Additional Sessions Judge, 1st Court, Dacca, that the joint trial of those persons was illegal. But the learned Additional Sessions Judge took the view that since some of the police‑officers and local witnesses had stated that the accused persons were jointly suspected in several cases, it was not necessary for the Magistrate to make a separate charge of association in the proceeding itself.

3. It may be pointed out that in the proceeding that was drawn up the allegation was that they were habitual thieves and burglars under clause (a) of section 110 of the Code of Criminal Procedure and that they were so dangerous and desperate in character as to render their being at large without sureties hazardous to the community under clause (f) of section 110 of the Code of Criminal Procedure.

4. It is now argued before me that in view of these allega tions the joint trial was absolutely illegal, for, there could not possibly be any association in matters connected with their character so as to make them together dangerous persons and, therefore, their joint trial was illegal and had prejudiced them in no small measure.

5. In the present case, the proceeding drawn up was a joint proceeding and there was nothing therein about their habitual association for any of the purposes mentioned there. Even if it was possible to try them jointly where the evidence is common and habitual association is established it is difficult to appreciate how there can be any such connection between various persons in regard to their character so as to make them dangerous and desperate persons and thus render their being at large hazardous to the community.

6. It is true that under subsection (5) of section 117 a joint trial for an offence of this nature is possible where two or more persons are associated together in the matter `under inquiry. But the expression "associated together" must necessarily mean acting in concert or that there is something in the nature of a conspiracy among them in respect of the various acts alleged. If this be so, then a concert or conspiracy with regard to character is difficult to conceive of. The character of being desperate or dangerous is a result or consequence of the acts committed and not a result of the conspiracy or concert between the persons. 7. ~n taking this view, I find support also from a decision of the Calcutta High Court in the case of Hari Telang and others v. Queen‑Empress (I L R 27 Cal. 781) and from the decision of the Madras High Court in the case of Kutti Goundan and another (A I R 1925 Mad. 189).

8. My attention has also been drawn to a decision of my learned brother Akbar, J., in the case of Sheikh Kaloo v. The State ((1957) 9 D L R 253), where he has held that if there is ample evidence to show that the petitioners were confederates and partners in their mis deeds a joint trial may be permissible. This aspect of the matter, as indicated earlier in this judgment by me, teas not, however, considered in that case. But the case of Shamsuddin v. Emperor (26 C L J 1114) was relied upon and it was held that since' they were confederates and partners in their misdeeds, the joint trial was permissible.

9. In the case of Shamsuddin v. Emperor, it appears that only two persons who were brothers were charged and tried toge ther and the evidence was that they lived together and committed several acts jointly and it was upon that evidence that it was held that the joint trial did not prejudice them in any manner.

10. In the case of Sheikh Kaloo v. The State, 15 persons were charged and tried together under section 110 but my learned brother Akbar, J., held that there was ample evidence to show that they were confederates and partners in their misdeeds and furthermore that the Magistrate had written separate judgments so that the evidence against one may not be used against others and, hence, in his opinion, the joint trial in the circumstances of that case had not prejudiced the accused persons.

11. The facts, however, are different in the present case. There is one judgment against the 3 petitioners in this case and there is also no marshalling or sifting of evidence against the individual accused nor is the evidence of association or con federacy or conspiracy of any reliable character. In these circum stances, I am inclined to agree with the learned counsel appearing for the petitioners that in the facts and circumstances of the present case the joint trial did cause a serious prejudice to the accused persons, and, particularly, to the third named accused, for, the evidence against him is of an extremely weak nature. I am also influenced in this view by the fact that there was no accusation against them either of being habitually associated in their misdeeds.

12. For these reasons, I make this Rule absolute, set aside the order of the Magistrate requiring the petitioners to furnish the bond and direct that they be retried separately in accordance with law.

13. Let the records be sent down immediately so that the matter may be taken up and disposed of as expeditiously as possible. During the pendency of the matter in the Court below, the petitioners will continue to remain on the same bail on which they were originally enlarged during the pendency of the pro ceeding. K. B. A. Retrial ordered.