- (1.) This is an application under Section 482 Code of Criminal Procedure. The four applicants are being prosecuted for the alleged recovery of Copper wire belonging to Railway. This wire is said to have been recovered on a personal search of these four applicants on the same day viz. 3-3-1972 and also at the same time. After the necessary investigation four separate, complaints were filed against the applicants in the Court of the Railway Magistrate at Allahabad. The four applicants were ordered to be summoned and they appeared in Court on 19-2-1973. On 5-3-73 the prosecution was ordered to produce its witnesses. After several adjournments the examination of one prosecution witness started and completed on 18-12-73. On 21-1-1974 an application was moved by the prosecution that the trial should be stayed to enable it to obtain expert opinion regarding the question whether the recovered wire is Railway Property or not. The Magistrate allowed this application and ordered the case to be consigned till receipt of the experts report. Thereafter, a charge sheet was submitted by the police against these applicants under Sections 379 and 411 IPC also. This police case was transferred to the Court of the same Magistrate. On 28-10-1974 in this police case too a similar application was given by the prosecution for consigning the case awaiting the report of the expert and this application was also allowed. The prayer in this application is that the proceedings in both these cases should be quashed firstly because a joint trial of the four applicants was illegal, secondly because the prosecution could not be permitted to collect fresh evidence after the trial had started and thirdly because the prosecution was guilty of laches resulting in serious prejudice to the applicants.
(2.) On behalf of the State, a counter affidavit was filed in which it had been stated that the wire was sent to the expert and his report has been received. According to the contention of the lear ned counsel for the State, there was no undue delay and the prosecution had a right to- collect fresh evidence. The allegation that a joint trial of the four applicants is going on has not been denied.
(3.) After hearing the counsel for the parties, I have come to the conclusion that a joint trial of the four applicants is against law. The case in which several persons can be tried together are specified in Section 239 Code of Criminal Procedure (old). This is a case in which Copper Wire is said to have been recovered from the personal search of each applicant. It cannot be said that the offence of stealing Copper wire had been committed by all the four applicants in the course of the same transaction ; it cannot also be said that this stealing had been committed by the four applicants jointly and therefore this particular case does not fall within any of the clauses of Section 239 Code of Criminal Procedure. The record of the case under the Railway Property (Unlawful Possession) Act was summoned and I have looked into it. The Magistrate has not passed any order indicating how and under what provision of law he is holding a joint trial of the four applicants. Even under the new Code of Criminal Procedure a joint trial can be held only if the accused persons, by an application', in writing, desire that they should be tried together. There is no such application on record. I am therefore of the opinion that this, joint trial of all the four applicants under Section 3 of the Railway Property (Unlawful Possession) Act is illegal and so the entire proceedings in this case wilt have to be quashed.;