Authored By : William McCormick Sharpe, P.B. Chakravartti

William McCormick Sharpe, J.

1. This Reference case No. 9 of 1945 and the connectedAppeal No. 616 of 1945 preferred by Abdul Kader, as well as the jail appealspreferred by Abdul Kader, Fazil Bepari and Kalu Mia have been heard together.All the appellants have been found guilty under S. 302, Penal Code by theunanimous verdict of the jury and sentenced to death by the learned SessionsJudge of Rajshahi. Each of the appellants has also been found guilty under S.120B/302, Penal Code and in addition Fazil and Kalu have been found guiltyunder S. 201, Penal Code by the unanimous verdict of the jury and they havebeen convicted under those sections, but no separate sentences have beenimposed, because of the sentences of death, imposed for the major offence,which have been referred to this Court for confirmation.

2. The prosecution case and evidence are briefly as follows: On Thursday, 2nd November 1944, Aniruddin, Vice - President of the LakshipurKholabaria Union Board, was called from his house about 9 A. M. by a man who wasat first unknown but who subsequently transpired to be Ramjan Sardar,Chonkidar, P. W. 7. He did not return that evening or the following day so hisson, Hossain P. W. 1, began to make enquiries, but without any success. On theSaturday, he continued his enquiries at the hat and there met the President ofthe Union Board, Abdur Rahim, who advised him to give information at the thanathat his father was missing, but without mentioning any one as suspected inthat connection. Accordingly, on Sunday, 5th November, Hossain went to thethana and lodged information that his father was missing and that he did notsuspect any foul play. On the following Tuesday, however, Amiruddin Bepari, P.W. 4, father-in-law of Hossain, was sent for by Kader Pramanik, P. W. 9. Kaderinformed him that he had learnt from his brother-in-law Kalu Haldar, P. W. 10,that Fazil Bepari, who lived in his house, had told him that he (Fazil), AbdulKader and Kalu Mia had murdered Aniruddin at the instigation of Abdur Rahim,President, Union Board, who had promised them Rs. 1000 as a reward. Amiraddincommunicated this information to Hossain and asked him to search the jungle ofDiara Saturia where the murder was said to have been committed. He himselfproceeded to the thana on 8th November, and, he says, told the Sub-InspectorBarhanuddin Shaikh, P. W. 31 what he had heard. No note of this information washowever made in the station diary. The Sub-Inspector came to the locality onthe evening of 9th November, and apparently was then shown some blood marks andsaw marks of struggle near a bamboo grove where the murder was supposed to havebeen committed. Next day he again visited that place and examined somewitnesses, including Amiruddin Bepari and Kalu Haldar from whom informationabout the commission of the murder had been received. Thereafter Fazil and Kaluwere produced in custody and on 11th November, apparently they made certainstatements to the Sub-Inspector. In pursuance of those statements, according tothe prosecution, Fazil and Kalu took the Sub-Inspector who was accompanied by anumber of witnesses, including P. Ws. l, 3, 4, 20, 24 and 25 to the bamboogrove where the blood marks had been found. Then they took the Sub-Inspectorand his party to a place in a Khasia field about a mile away where, theystated, they had cut the dead body into pieces on a piece of wood. A piece ofwood, Ex. 7 with marks of cutting and blood was found at this place and alsosome small pieces of bone (EX.8) and a piece of string (Ex. 9) which Hossain identifiedas having been worn by his father round his waist. Next Fazil and Kalu statedthat they had thrown the fragments of the body into the river, and took theparty to a place on the river bank where they further said they had buried theclothes of the deceased. They dug up this place and produced a dhuti (Ex. 12),a shirt (Ex. 18) and a fatwa (Ex. 14) all of which were identified by Hossainand his mother Raimannessa, P. W. 2, as having been worn by the deceasedAniruddin. A search was then made in the river at this place and a portion of afoot was recovered. According to the medical evidence, the bones were probablythose of a human skull and the portion of foot that of a male aged about fifty.These were sent to the Chemical Examiner, whose report confirmed that the footwas that of an adult human being, possibly of a male, and that certain featuresof the skin suggested that the person was in the habit of wearing shoes.Evidence was adduced by the prosecution that the deceased used to wear shoes attimes.

3. Following the above mentioned discoveries, investigationcontinued and eventually a charge sheet was submitted against Ramjan Choukidar,Abdul Kader, Fazil and Kalu. Thereafter, on the prayer of the CourtSub-Inspector there was further investigation and a charge sheet was submittedalso against Abdur Rahim alias Abdul Rahim Sarkar, President of the UnionBoard. Enquiry, preparatory to commitment, was held by a First Class Magistrateof Nator. Apart from the evidence already narrated, the main prosecutionevidence consisted in the statements of Baharuddin, P.W. 5 and Rajab Pramanik,P.W. 11. P. W. 5 claimed to have seen the deceased Aniruddin being pulled downby a cloth round his neck and assaulted by Abdul Kader, Fazil and Kalu, and thePresident of the Union Board, Abdur Rahim standing near the spot. P. W. 11alleged he had seen four persons dragging Aniruddin and pushing him down and tohave recognised Kalu and Abdul Kader amongst those four. Mahammad Ali Shaikh,P.W. 12, deposed that Abdul Kader told him he had killed Aniruddin and askedfor his help in disposing of the body. Bahar Akanda and Bebu Molla, P.Ws. 18and 19 stated that they had seen Aniruddin going with Ramjan Choukidar on theday on which he disappeared. Two other witnesses, Khairuddin, Mandal, P. W. 21and Muniruddin who was examined in the lower Court, stated that on a Thursdayin the middle of Kartik they saw Fazil, Kalu, Abdul Kader and the PresidentUnion Board standing near a bend of a road. Aniruddin and Ramjan came there andjoined them. From there Ramjan went off to the east whilst the other fivepersons proceeded towards the north. Certain other witnesses were examined toprove enmity between the deceased and the President Abdur Rahim and AbdulKader, which, it was suggested, supplied the motive for the crime. Other formalwitnesses were examined and the investigating officers. Eventually Abdul Kader,Fazil and Kalu were committed to the Court of Session for trial under S. 302and these three accused and Abdur Rahim alias Abdul Rahman Sarkar werecommitted for trial under S. 120B/302, Penal Code. Ramjan Choukidar wasdischarged and was subsequently examined as P. W. 7 in the Court of Session. Hegave evidence with regard to calling the deceased from his house on the day ofoccurrence on the instruction of the President Union Board, and of having takenhim to a place north of Habitpur Hat where they met the President and the otherthree accused. There he left them, but later he again saw the President at aplace on the road and at that time he alleged he saw the other three accused inthe jungle where he saw the dead body of Aniruddin.

4. In the Court of Session a further charge under S. 201,Penal Code, was framed against Abdul Kader, Kalu and Fazil. The trial was heldwith the aid of nine special jurors with the result that Abdul Kader, Fazil andKalu were found guilty unanimously under S. 302/34, Penal Code, all fouraccused were found guilty unanimously under S. 120B/302, Penal Code, and Faziland Kalu were found guilty unanimously under S. 201, Penal Code. It does notappear that any definite verdict was given in respect of Abdul Kader under S.201, Penal Code, but the learned Sessions Judge acquitted him of that charge.The sentences imposed on Abdul Kader, Fazil and Kalu have been already stated.Abdul Rahim the President Union Board was sentenced to transportation under S.120B/302, Penal Code, and he has made no appeal to this Court against thisconviction and sentence. The other three accused have appealed and the sentencesof death have been referred to us for confirmation in accordance with theprovisions of S. 874, Criminal P. C. Each of the appellants before us has beenseparately represented and we have heard the learned advocates at length bothwith regard to questions of law and on the facts. Since however we havedecided, for reasons to be recorded hereafter, that it will be necessary for usto order a retrial in this case, it will be unnecessary, and indeed undesirablefor us to enter into the merits.

5. The main ground on which it has been contended by thelearned advocates for the appellants that the trial is bad and the verdict ofthe jurors has been vitiated is that certain inadmissible evidence has beenplaced before the jury and that the verdict has been based on and influenced bythat inadmissible evidence. In the first place, it is claimed on the authorityof the decision, 30 Cr. L. J. 639 Faquira v. Emperor (29) 16 A. I. R. 1929Lah. 665 : 116 I.C. 619: 30 Cr. L. J. 639, that the evidence of joint discoveries,said to have followed the statements of both Kalu and Fazil, could not beadmitted under the provisions of S. 27, Evidence Act; in the second place it ismaintained that certain portions at least of the statements of the accusedFazil and Kalu which have been admitted in evidence do not relate distinctly tothe facts thereby discovered and so could not be proved against them under theprovisions of that section. We have heard the learned Deputy Legal Remembrancerwho appeared for the Crown in regard to these contentions and are satisfiedthat they are substantial and must be accepted. The position with regard to theadmissibility in evidence of the statements of a number of persons leading todiscoveries has been considered and discussed in 62 Cal. 672 Emperor v.Rafique-uddin (35) 22 : A.I.R. 1935 Cal. 184 [LQ/CalHC/1934/250] : 62 Cal. 572 [LQ/CalHC/1934/250] :155 I. C. 687 (F. B.) and this decision followed with approval the earlierdecision of this Court, 59 Cal. 1040 [LQ/CalHC/1931/203] Durlav Namasudra v. Emperor (32) 19 A. I.R. 1932 Cal. 297: 59 Cal. 1040 [LQ/CalHC/1931/203] : 188 I. C. 116 and the principle laid down byStraight J. of the Allahabad High Court in 6 ALL. 609 Queen-Empress v. Babu Lal(24) 6 All. 509 (F. B.). That principle was expressed in the following words,at p. 549 of the report:

6. "I have more than once pointed out that it is not aproper course, where two persons are being tried, to allow a witness to statethey said this or they said that or the prisoner then said. It iscertainly not at all likely that both the persons should speak at once, and itis the right of each of them to have the witness required to depose as nearlyas possible to the exact words he individually used. And I may add, where astatement is being detailed by a constable as having been made by an accused, inconsequence of which he discovered a certain fact or certain facts, thestrictest precision should be enjoined on the witness, so that there may be noroom for mistake or misunderstanding."

7. In the decision 59 Cal. 1040 [LQ/CalHC/1931/203] Durlav Namasudra v. Emperor(32) 19 A. I. R. 1932 Cal. 297: 59 Cal. 1040 [LQ/CalHC/1931/203] : 188 I. C. 116 referred to above,the evidence to which objection was taken was given by a Sub-Inspector ofPolice to the following effect:

8. "At 4 P. M. on 7th December 1930, I examined Kolo,Karna, Abhoy and Durlav. I arrested them then and there on suspicion aftertheir examination. On the forenoon of 13th July 1930 I proceeded to Abdua tankwith the accused Durlav, Kolo, Karna and Abhoy and certain other witnesses. Iwent to that tank in consequence of the information, given to me by all thefour accused named above, that the dead body of Rai Namasudra was concealed inthe tank with stones tied to it. On reaching the tank, a dead body wasrecovered from it from under water hyacinths almost in the centre of the tank."

9. It was held by their Lordships in that case that thisevidence was inadmissible because the accused were not in custody at the timeat which their statements were made. Apart from that objection, however, it washeld further that:

10. "The statements of the persons other than the firstperson who made the statement cannot be used in evidence. The statement made bythe first individual under S. 27, and in the circumstances described, may betreated as evidence against him; but it is not allowable under the provisionsof law to treat the evidence of the other persons who may have made statementsof the description referred to in S. 27 as evidence admissible under theprovisions of that section... And it has always been held that the factdiscovered should not be treated as having been discovered from the jointinformation of all the persons who may have made statements under S. 27 and inthe circumstances stated in that section. It has been laid down that it shouldbe deposed that a particular fact has been discovered from the information ofone person and this will let in, under S. 27, so much of the information asrelates distinctly to the fact discovered by reason of the statement made bythat one person."

11. It was with reference to these observations thatMukherji J. stated in 62 Cal. 572 [LQ/CalHC/1934/250] Emperor v. Rafique-uddin (35) 22: A.I.R. 1935 Cal. 184 [LQ/CalHC/1934/250] : 62 Cal. 572 [LQ/CalHC/1934/250] : 155 I. C. 687 (F. B.):

12. "There is one instance in which two of the accusedpersons are said to have jointly produced some of these articles. In leadingevidence with regard to this part of the case, no attention seems to have beenpaid to the salutary principle laid down by Straight J. of the Allahabad HighCourt in 6 All. 509 Queen-Empress v. Babu Lal (24) 6 All. 509 (F. B.), aprinciple which has been reiterated by this Court so recently as in 59 Cal.1040 Durlav Namasudra v. Emperor (32) 19 A. I. R. 1932 Cal. 297: 59 Cal. 1040 [LQ/CalHC/1931/203] :188 I. C. 116 namely that where joint acts of several persons at a sought to beproved, in order to ask the Court to draw an inference from such conductevidence should be led with some degree of particularity so that it may bepossible for the Court to draw the necessary inference from the conduct of eachone of the persons concerned in the act."

13. In the case which we are now considering, there has beenno attempt to indicate which of the accused Fazil or Kalu first made thestatement which led to the discovery, or pointed out the place in which thedifferent alamats were found. Indeed, the evidence adduced indicates that thestatements were made jointly and the action was taken jointly, a state ofaffairs, which, though not perhaps entirely impossible, is certainly distinctlyimprobable. Moreover, it is admitted that Fazil and Kalu had both madestatements to the Sub-Inspector which he had recorded separately and it was onthe basis of these statements that these accused persons took the Sub-Inspectorand the witnesses to certain places and that the alamats were recovered. If, ofcourse, the prosecution are in a position to establish that the statements orthe action which led to the discovery were actually made, or took place,simultaneously we do not think that evidence in regard to the simultaneousstatements or the simultaneous action would be entirely shut out by theprovisions of S.27, Evidence Act, but there must be clear and satisfyingevidence on this point such as will enable the Court to decide and to give aspecific direction to the jury whether the evidence is admissible against bothof the accused or against either and if so against which. The learned SessionsJudge recognised the difficulty in this case and in the end of his chargeattempted to explain to the jurors the position in case they thought thateither of the accused had made the statement first. The provisions of S. 298,Criminal P. C., however, enjoin that it is the duty of the Judge to decide allquestions as to the admissibility of evidence, and we do not think it wasproper for him to put this matter before the jury in the manner in which hedid, and to leave it to the jurors to decide whether this important evidencerelating to discoveries was admissible against either of the accused Fazil orKalu or against both. We realise, of course, the difficulties in deciding inall cases which particular accused first made the statement or first took theaction which in fact led to the discovery, and that there may be some elementof unfairness in the admission of evidence of discovery against one accused,and its exclusion against another, merely because the former accused happenedto make his statement or took some action just a little earlier, but it hasbeen consistently recognised that the provisions of S. 27, Evidence Act, mustbe very strictly cons- trued and the decisions of the Courts in regard toadmissibility of statements made by more than one accused must be followed. Weare not satisfied that the evidence adduced in this case was sufficient to showthat the evidence of joint statements was admissible against both Fazil andKalu or whether any particular part of that evidence was admissible againsteither Fazil or Kalu, though it will be open to the prosecution in the retrial,which we propose to order, to satisfy the Court in regard to those matters, ifit is in a position to do so.

14. Apart from the defect in regard to admissibility ofjoint statements, we are of opinion that certain portions of the statementswhich have been admitted were not admissible under S. 27, Evidence Act. It isonly necessary to refer to the wording of S. 27 to see that what is admissibleis only so much of the information as distinctly relates to the fact therebydiscovered. This question was examined in 34 C. W. N. 106 Superintendent andRemembrancer of Legal Affairs, Bengal v. Bhajoo Majhi (30) 17 A. I. R. 1930Cal. 291 : 57 Cal. 1062 [LQ/CalHC/1929/302] : 125 I. C. 733 : 34 C. W. N. 106, in which it was heldthat a statement made by an accused person while in police custody whichcontains a confession of guilt, as also supplies information in consequence ofwhich a discovery is made is not admissible in its entirety under S. 27,Evidence Act, but only so much of it can go in as relates distinctly orimmediately to the discovery. In the case there under consideration, certainwitnesses gave evidence that the accused had pointed out a place to theSub-Inspector saying that he had murdered the deceased there, and then pointedout another place where he had thrown the dead body into the river. There wasalso evidence with regard to the recovery of certain clothes from this place,and the finding of blood marks at the place where the deceased was said to havebeen struck down. Their Lordships in that case accepted the view that theadmissions said to have been made by the accused that he had killed the deceasedand had thrown his body into the river were inadmissible and that all thatcould be admitted was so much as related to the actual discovery of thebloodstains and the articles of clothing in the river. In a decision of thisCourt, 45 Cal. 557 [LQ/CalHC/1917/355] Amiruddin Ahmed v. Emperor (18) 5 A. I. R. 1918 Cal. 88 :45 Cal, 557 [LQ/CalHC/1917/355] : 44 I. C. 321, a similar view was taken in regard to theadmissibility of statements under S. 27, and Shamsul Huda J. cited as anillustration of the principle to be followed that

15. "When an accused states to the police that hekilled A with a knife and concealed the corpse at a particular place, the onlypart of the information admissible under S. 27 is that relating to theconcealment and not the murder."

16. In the case in 26 Cr. L. J. 1429 Sulakhan Singh v.Emperor (26) 13 A. I. R. 1926 Lah. 138 : 89 L. C. 901 : 26 Cr. L. J. 1429, itwas held by the Lahore High Court that a statement by an accused to the policethat he would point out the place where the dead body of the deceased was buriedwas admissible, but not his further statement that he had buried the body. Inthe case before us there is the evidence of a number of witnesses and inparticular of the Sub-Inspector, P. W. 31, that Fazil and Kalu said they hadcut up the dead body in a Khasia field, that they had thrown the pieces of thebody into the river and that they had buried the clothes of the deceased. It isquite clear that these statements did not relate distinctly to the factsthereby discovered. The facts discovered in consequence of the statements weremerely that at a place in the Khasia field were found a bloodstained log ofwood, some pieces of bone and a string said to have been worn by the deceased,that at a place on the river bank were found, the clothes said to have beenworn by the deceased when he was last seen alive and that a human foot whichmight have been that of the deceased was recovered from the river. These werecertainly facts from which some inference as to the guilt of Fazil or Kalumight be drawn, but the statements that they cut up the dead body or that theyburied the clothes or that they threw the pieces of the dead body into theriver, direct admissions at least of the commission of an offence under S. 201,certainly did not relate distinctly to the facts discovered. These statements,we think, were entirely inadmissible in evidence, and they were of such anature that we consider they must have influenced the jurors considerably inreaching their verdict. In his charge the learned Sessions Judge made thisobservation."

17. I personally believe that these articles could not havebeen discovered but for the information given by Kalu and Fazil and that theirstatement that they have cut off the body and thrown (it) into the river is ofthe highest importance so far as the charge against these two accused personsis concerned."

18. In view of this direction the jurors could not but haveplaced great value on this evidence, and in our opinion, a verdict based, atleast in part, on this inadmissible evidence cannot be sustained, and must beset aside. We might note here that the learned Deputy Legal Remembrancersuggested that even if the statements, to which we have referred, wereinadmissible under S. 27, Evidence Act, they could be admitted as made to thirdparties, i.e., to the witnesses other than the Sub-Inspector. We do not thinkthis suggestion can be accepted. It is quite clear, we think, that thestatements to which we have referred were in fact made by the accused to theSub-Inspector and were heard by the witnesses only incidentally. In a recentdecision of the Lahore High Court, 21 Lah. 242 Hakam Khuda Yar v. Emperor (40)27 A.I.R. 1940 Lah. 129 :I.L.R. (1940), 21. Lah. 242: (F.B.), it was held thatwhere an accused person makes a statement to another person in presence of thepolice the question whether that statement was made to the other person or tothe police is a question of fact and not of law. In the present case, there isno evidence that the statements were made to any persons other than theSub-Inspector. He had already recorded their statements and it was inconsequence of those statements that the accused took the Sub-Inspector andother witnesses to the places at which the discoveries were made. We cannotaccept therefore the suggestion that these statements were reallyextra-judicial confessions. Even if they were, they would be excluded by S. 26,Evidence Act, since the accused were in custody and no Magistrate was present.

19. We think it necessary to refer only to one other small pointin the arguments advanced on behalf of the appellants. It was contended thatthe explanation of S. 34 Penal Code, was inadequate and that the observation ofthe learned Sessions Judge that "the prosecution has only to show that allthe three accused persons were present together at the time the murder wascommitted and need not prove the part played by each of them in the actualmurder" amounted to a misdirection. Taken from their context, these wordswould, we think, certainly constitute a misdirection, but in view of the wordswhich precede them, we think, they probably do not represent the exact meaningof what was told to the jury. However, so that there may be no repetition ofsuch a direction, we think it desirable to draw attention to the decision in 35C. W. N. 463 Fazoo Khan v. Jatoo Khan (31) 18 A. I. R. 1931 Cal. 643 : 134 I.C. 1198: 35 C. W. N. 468 in which it has been observed that

20. "all the accused persons can be found guilty of anoffence constructively under S. 34, Penal Code, only on a finding that each ofthem took some part or other in, or towards, the commission of theoffence."

21. It is true that to convict any particular accusedconstructively under S. 34 of an offence, say of murder, it is not necessary tofind that he actually struck the fatal blow, or any blow, but there must beclear evidence of some action or conduct on his part to show that he shared inthe common intention of committing murder. For the reasons which we have statedabove, we are of opinion that the appeals of Kalu and Fazil must be allowed andthe verdict of the jury which we think to have been vitiated by inadmissibleevidence and misdirection set aside. It follows therefore that the convictionsand sentences passed must also be set aside and the reference rejected. It wascontended by the learned Deputy Legal Remembrancer that the inadmissibleevidence related only to the cases of Kalu and Fazil, but did not affect thecase of Abdul Kader. We cannot agree. In summerising the evidence against thethree accused, including Abdul Kader, the learned Sessions Judge referredspecifically to the corroboration afforded by the circumstances leading to thediscovery of the foot, clothes, etc., and we feel that the evidence which wehold to be inadmissible may well have influenced the verdict of the jury in itsentirety. Moreover the misdirection in regard to the application of Sec. 34,though of a minor nature only, affects also the case of Abdul Kader. We musttherefore allow also his appeal and set aside his conviction and the sentencepassed upon him, and reject the reference so far as he too is concerned. Ifhowever the prosecution case is believed, there can be no doubt that a verybrutal and deliberate murder has been committed and although this Court isordinarily hesitant to order a retrial, we feel that even excluding theevidence which we regard as inadmissible, there still remains sufficientevidence, on which the jury, if they believe it, might reasonably convict theappellants. For these reasons we think that these accused Abdul Kader, Faziland Kalu should be retried and we direct accordingly.

22. There remains one matter to be considered. In view ofour decision that there must be a retrial of the three appellants it becomesnecessary to consider whether any action is called for with regard to theaccused 4, Abdur Rahim, who has not preferred an appeal to this Court and inrespect of whom there is no reference before us. The only charge against himwas one under S. 120B/302, Penal Code, of which he has been convicted alongwith the remaining accused. With respect to that charge the learned Judgedirected the jury inter alia as follows :

23. "The principal evidence as regards the charge ofconspiracy is the evidence of the fact that a murder took place under suchcircumstances and that such accused persons took part in it. If you disbelievethe evidence of Bahar, Rajab and Ramjan and find that the charge under S. 302,Penal Code, is not proved, then there is practically no evidence of conspiracy,because if Kader, Fazil, and Kalu are not murderers, the association betweenthem and the President Union Board will not raise any suspicions."

24. This direction, in our opinion, was correct, and itseems to us inconsistent that the question whether the present three appellantscommitted the murder should be directed to be investigated, and at the sametime, a conviction of another accused person of conspiracy had on the basisthat he and the appellants conspired to commit the murder, as evidenced by thefact that the murder was committed in pursuance thereof, should be maintained.As soon as the finding of murder is set aside, the foundation of the convictionof conspiracy, in the circumstances of the case, disappears. We think it alsoimportant to bear in mind that the conviction of the remaining co-conspiratorsof the charge under S. 120B/302, Penal Code, is being set aside, with theresult that Abdur Rahim remains convicted of having conspired with theappellant, while it remains to be found that the appellants conspired with him.In these circumstances, it does not appear to us right that we should becognisant of the position and yet refrain from taking any action as regards theconviction of Abdur Rahim. In situations like the present, this Court has setaside the conviction of the non-appealing accused in exercise of its revisionalpowers without giving them any opportunity of being heard, and instances of theexercise of such powers will be found in 58 Cal. 902 [LQ/CalHC/1930/267] Rajani Kant v. Emperor(31) 18 A. I. R. 1931 Cal. 618 : 58 Cal. 902 [LQ/CalHC/1930/267] : 133 I. C. 183, 5 C.W.N. 330Broja Rakhal v. Emperor (01) 5 C.W.N. 330 and 31 C. L. J. 305 Mir Mouze Ali v.Emperor (20) 7 A. I. R. 1920 Cal. 617 : 56 I. C. 858 : 31 C. L. J. 305. In allthose cases, however, the result was that the convictions and sentences of thenon-appealing accused were set aside and they were acquitted. Quite obviouslytherefore the orders were to their advantage.

25. But in this case, whilst we think the conviction andsentence of Abdur Rahim should, in view of our present decision, be set aside,we are also of opinion that he should be retried along with the otherappellants. Since he has not himself raised any objection to his conviction andsentence then might, we feel, be some room for contention hereafter that anorder for retrial would be an order to his prejudice, if he does not wish to beretried, and so would contravene the provision of cl. (2) of S. 439, CriminalP. C., if made without giving him "an opportunity of being heard eitherpersonally or by pleader in his own defence." In these circumstances, wedirect that a rule should be issued upon Abdur Rahim alias Abdul Rahaman Sarkarand upon the Crown to show cause why his conviction and sentence should not beset aside and why he should not be retried. The rule should be made returnableby 29th October next and the matter placed for bearing on that date. Theretrial of the other three appellants should stand over until the rule isdisposed of.

P.B. Chakravartti, J.

26. I agree.

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Abdul Kader and Ors. vs. Emperor (26.09.1945 - CALHC)