JUDGMENT
Sahai, J.
1. The substantial point which this case raises is as to the true effect and scope of Clause (b) which has been inserted in Section 537 of the Code of Criminal Procedure by the amending Act (XXVI of 1955).
2. Birichh Bhuian son of Jhari Simian, Jadooni Bhuian, Bhimla Bhuian and Kaila Bhuian (Petitioners Nos. 1, 8, 9 and 10) have been convicted under Sec, 147 of the Penal Code, and have been sentenced to undergo rigorous imprisonment for one year each. They have further been convicted under Section 452; but no separate sentence has been passed under that section, Birichh Bhuian son of Basu Bhuian, Saiju Bhuian, Akloo Bhuain, Gulab Bhuian, Mogla Bhuian, and Dha-ramjit Bhuian, (petitioners Nos. 2 to 7) have been convicted under Section 147, and each of them has been sentenced to undergo rigorous imprisonment for three months.
Jamal (petitioner No. 11) has been convicted under Section 224 of the Penal Code, and has been sentenced to undergo rigorous imprisonment for one year. He has also been convicted under Section 11 of the Bengal Public Gambling Act (2 of 1867); but no separate sentence has been passed under that section. Moti Sonar, Hussain Mian, Kesho Bhuian and Ramkhelawan Bhuian (petitioneis Nos. 12 to 15) have been convicted only under Section 11 of the Gambling Act, and have been sentenced to undergo rigorous imprisonment for one month each.
3. The facts found by the Courts below, shortly stated, are these. On the 16th September. 1956, Assistant Sub Inspector K. P. Singh (P. W. 17), who was attached to Chainpur Out Post under Daltonganj Police station, left the outpost with constable Ramadeo Singh (P. W. 6) for village Paneri Bandh in order to execute a distress warrant. At about 3.55 p.m., when they readied near a bhatthi, the Assistant Sub Inspector found 10 to 15 persons gambling by the side of the road in village Chainpur at a distance of about 250 to 300 yards from his out-post.
The gamblers began to flee when the Assistant Sub-Inspector and the Constable approached them; but they succeeded in arresting petitioners Nos. 11 to 15 out of them. They also picked up playing cards and money from the ground. Thereafter, they took all the five arrested men to the Outpost. Jamal (petitioner No. 11) adopted a violent attitude and the Assistant Sub-Inspector ordered him to be handcuffed. While being handcuffed, Jamal began to shout and to abuse the Assistant Sub-Inspector, About 25.0 to 300 Bhuians, male an female, were dancing close to the outpost building.
A large number of them, including petitioners Nos. 1 to 10, rushed with lathis, dantas, and brickbats to the outpost, crying “maro sale ko, mudaleh ko chhora lo”. Members of the mob assaulted the Assistant Sub-Imspector and the two constables, Ramdeo (P. W. 6) and Kudus (P. W.7). All the three fled away for their lives. The rioters looted several properties of the out-post as well as some articles of the Assistant Sub-Inspector and constable Kudus. When information reached Daltonganj, a Magistrate with armed force was deputed to go to Chainpur. They as well as the Deputy Superintendent of police and the Sub-Inspector of Daltonganj police station arrived there, and it was only then that the Assistant Sub-Inspector (P. W. 17) and the constables (P. Ws. 6 and 7) could return to the outpost.
4. Three first Information reports (exhibits 2/2, 3/2 and 4/2) were drawn up, and three charge-sheets were also submitted; but the Prosecuting Inspector filed an application before the Magistrate on the 29th December, 1956, praying that the three cases be tried together. The petitioners do not appear to have raised any objection, and, after hearing both sides, the learned Magistrate amalgamated all the three cases. Only one trial was accordingly held. The petitioners do not appear to have raised any objection to the joint trial in their written statement or at any stage before the trial Court. The objection was; however, taken before the lower appellate Court.
5. The facts mentioned above have not been challenged before us. The learned 2nd Additional Judicial Commissioner of Chotanagpur, who disposad of the appeal, has held — and, in my opinion, quite rightly — that the offence under Section 11 of the Gambling Act committed by petitioners Nos. 11 to 15 was not committed in the course of the same transaction as the offences which were committed at the Chainpur Police Outpost. He has further held that the trial has not been vitiated because the defect in the joint trial is curable under the new Clause (b) of Section 537 of the Code of Criminal Procedure and no prejudice has been caused to the petitioners.
6. Appearing on behalf of the petitioners, Mr. Tarni Prasad has argued that the expression ‘misjoinder of charges’ which has been used in Clause (b) of Section 537, applies to a case where only one person is on trial on several charges for different offences and not to a case where several persons are on trial. In other words, his contention is that the Additional Judicial Commissioner has erred in holding that the expression covers a case of defect in the joint trial of two or more persons. He has submitted that such a joint trial is vitiated, and that the defect amounts to an illegality which cannot be cured by Section 537. Mrs. Dharamshila Lall appears in another case in which she proposes to raise the same point, and hence we have heard her as amicus curiae in this case in support of the arguments advanced by Mr. Prasad.
7. There has been a serious conflict of judicial opinion on the question of misjoinder, and there is a very large body of case law on the
subject. One view which was taken was that the provisions of Section 233 of the Code of Criminal Procedure related to the mode of trial, and a trial of one person held in contravention of its provisions beyond the permissible limits laid down in Sections 234, 235 and 236, or a trial of more than one person held in violation of its provisions beyond the permissible limits laid down in Section 239, was illegal, and the illegality could not be cured by Section 537 as it stood before the amendment made by Act XXVI of 1955. The other view was that such a trial was only irregular, and the irregularity could be cured by Section 537. Mr. Tarni Prasad has referred to several decisions; but I will confine myself to a few of them.
8. In Subramania Iyer v. King-Emperor, 28 Ind App 257, the appellant was charged, in violation of the provisions of Section 234, with 41 offences committed in the course of two years. Their Lordships of the Judicial Committee held that the trial was illegal, and that the illegality could not be cured by Section 537. They disapproved of the decision of a Full Bench of the Calcutta High Court to the contrary in In the matter of Abdur Rahman, ILR 27 Cal 839. Lord Halsbury, the then Lord Chancellor, who delivered the judgment of the Board, stated:
“Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity. Such a phrase as irregularity is not appropriate to the illegality of trying an accused person for many different offences at the same time, and those offences being spread over a longer period than by law could have been joined together in one indictment.”
9. In Abdul Rahman v. Emperor, AIR 1927 PC 44 the question which came up for consideration before the Privy Council was whether non-compliance with another express provision viz. that of Section 360 of the Code of Criminal Procedur, which requires the evidence of a witness to be read over to him after it has been recorded would vitiate the trial. Their Lordships held that the trial was not vitiated. Referring to Subramania Iyer’s case, 28 Ind App 257, Lord Phillimore stated:
“The distinction between that case and the present is fairly obvious. The procedure adopted was one which the Code positively prohibited, and it was possible that it might have worked actual injustice to the accused.”
10. Their Lordships, of the Privy Council had to consider, in Babulal Chaukhani v. Emperor, AIR 1938 PC 130, the construction of Section 239(d) of the Code of Criminal Procedure and also whether the trial was vitiated because the charge for theft had been framed improperly. The case related to conspiracy to commit theft of electricity. For the purposes of that case, their Lordships assumed, without deciding the precise scope of the decision in Subramania Iyer’s case, 28 Ind App 257, that the infringement of Section 239(d) “constituted an illegality, as distinguished from an irregularity, so that the conviction would require to be quashed under the rule stated” in that case, if there was such an infringement. Thus, no distinction was made between a contravention of the provisions of Section 233 read with Section 234 on the one hand and Section 233 read with Section 239 on the other. As to the argument that the charge contravened the requirement of Section 233 to the effect that a separate charge should be framed for each distinct offence, Lord Wright observed:
“Then it was contended that the charge of theft was not properly framed because it alleged a multiplicity of offences between April 1934 and 16th January 1935, whereas the offences did not constitute a single continuing offence; they were separate offences commited on particular dates and should have been separately charged. Their Lordships feel that the form of the charge was most irregular and regrettable and one which should be avoided. But they cannot regard this objection as one which in the circumstances of this case should receive effect, especially because they agree with the High Court that no injustice was inflicted on the appellants….. In addition the irregularity was such as could be, and was cured under Sections 225 and 537 by the finding that the accused had not been prejudiced.”
Their Lordships thus placed a violation of one part of Section 233 in the curable category.
11. The question of misjoinder of offences and accused persons was raised before the Supreme Court in Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 217, and Subramania Iyer’s case, 28 Ind App 257, was cited. Referring to that case, Fazl Ali, J. who delivered the judgment of the Court, said:
“That case had somewhat peculiar features, because the accused was tried for no less than 41 separate offences in contravention of the provisions of Section 234 Cri. P. C. ….. The case has been discussed, explained and distinguished, in a number of cases, and it must be read with the subsequent decisions of the Privy Council in 54 Ind App 96 : AIR 1927 PC 44 and in AIR 1938 PC 130, which have been understood by some of the Indian Courts to have greatly modified and resricted the very broad rule which at one time there was a tendency to deduce from certain general observations made by the Privy Council. It may be that on a more appropriate occasion we may have to review the case law on the subject and lay down the true scope of the pronouncements made by the Privy Council in the case referred to above and the effect which in law the misjoinder of charges would have upon the trial.”
12. The Supreme Court had again to consider a similar question in Aftab Ahmad Khan v. State of Hyderabad, AIR 1954 SC 436. Ghulam Hasan, J. referred to the three Privy Council decisions mentioned above and also to another decision of the Privy Council in Pulukuri Kottaya v. Emperor, AIR 1947 PC 67 but stated that it was not necessary to decide whether violation of the general law laid down in Section 233 amounted “to an illegality vitiating the trial altogether or it is a mere irregularity which can be condoned under Section 537.”
13. There has been plenty of controversy in the High Courts as to the effect of misjoinder, and, as I have already stated, there is a large body of decisions in which different opinions have been expressed. Such was the state of the legal
position when Section 537 was amended by Act XXVI of 1955. By that Act, the word ‘charge-has been removed from Clause (a) of Section 537; but Clause (b) has been inserted. This clause, with the first part of the section, reads as follows:
“Subject to the provisions hereinbefore con-tained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account :
(b). of any error, omission or irregularity in the charge, including any misjoinder of charge…”
It is necessary to consider what this amendment connotes.
14. Chapter XIX of the Code relates to charges. It contains two sub-headings. Sections 221 to 232 fall under the sub-heading ‘Form of Charges’, and Sections 233 to 240 fall under the sub-heading ‘Joinder of Charges’. Section 233 lays down the general rule relating to charges. Its provisions can be analysed as follows:
1. There must be a separate charge for each distinct offence,
2. Every charge against a person must be tried separately except in the cases provided for in Sections 234, 235 and 236.
3. Charges against each person, when there are more than one accused, must be tried separately except in the cases mentioned in Section 239.
15. Sections 237 and 238 merely provide for conviction of a person for one offence when he is charged for another. Section 240 lays down the effect of withdrawal of some charges in certain circumstances. These sections do not have to be considered in this case.
16. If only one offence is committed by one person or by more persons than one, it is manifest that, the first part of Section 233 read with Section 239(a) only one charge and one trial would be necessary. The question whether a trial is or is not bad arises when more offences than one have been committed or more offenders than one are involved.
17. It seems to me that sections 234, 235 and 236, which form one class of exceptions to the rule laid down in Section 233, may be referred to as laying down the rule as to joinder of offences, and it has been so referred to in several decisions of different Courts. Section 239, which forms another class of exception, may, on the other hand, be referred to as laying down the circumstances in which there can be joinder of persons or accused persons. The same thing has sometimes been called joinder of trials; but, in my opinion, that expression lacks precision because the trial is one and it is not a case of several trials mixed into one.
Both classes of cases, however, have been grouped in the Code under the heading ‘Joinder of Charges’. This expression is comprehensive, and covers both joinder of offences and joinder of persons. Reading Section 233 in this light, it provides that there shall be a separate trial for each charge; but, in certain cases, more charges than one against one person, or more charges than one against more than one person, can be tried at one trial. In this connection, I may usefully quote a passage from Lord Wright’s judgment in AIR 1038 PC 130 (supra), which is as follows:
“Section 239 falls within Chapter 19, which deals with the form of charges and the joinder of charges. Under the latter division fall sections 233 to 240 inclusive. Section 233 states the general rule that for every distinct offence of which any person is accused there shall be a separate charge and each charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239. Sections 234, 235 and 236 deal with the joinder and trial of different offences against the same accused. Section 239 deals with the joinder in one charge and trial of several persons. Section 239(d) if written out in full would read thus:
“The persons accused of different offences committed in the course of the same transaction may be charged and tried together, and the provisions contained in the former part of this Chapter (this is in regard to the form and joinder of charges) shall, so far as may be, apply to all such charges.
“The clause is expressly an exception from Section 233 and enables a plurality of offences to be dealt with in the same trial”.
18. The expression ‘misjoinder of charges’ in the new Clause (b) of Section 537 is new, and it was nowhere used in the Code previously. The words plainly signify, however, a violation of the rules laid down in Ss. 233, 234, 235, 236 and 239 relating to joinder of charges. If this is correct–and I have not the slightest doubt $iat it is correct — the expression ‘misjoinder of charges’ covers not only a case of trial of one person in violation of Section 233 be-yond the exceptions made in sections 234, 235 and 236 but also that of a trial of more than one person in violation of Section 233 beyond the exceptions provided for in Section 239.
Mrs. Lall has, however, urged that the expressions ‘joinder of charges’ and ‘misjoinder of charges’ had come’to acquire, under Judicial pronouncements, the special meaning of joinder or misjoinder of offences; whereas the expression ‘misjoinder of persons or trials’ was used to indicate a joint trial of more than one person held in circumstances not covered by Section 239. She has drawn our attention to five cases in support of this argument.
They are Emperor v. Fasih-ud-din, 28 Cri LJ 459: (AIR 1927 Lah 737); H. F. Bellgard v. Emperor, AIR 1941 Cal 707, Moongan v. Roshan Ali Sahib, AIR 1941 Mad 910, AIR 1954 SC 436 and Kadiri Kunhahammad v. State of Madras, AIR 1960 SC 661. In most of these cases, the expression ‘misjoinder of charges’ has been used even where only misjoinder of offences was meant; but I am unable to hold that their Lordships, who decided those cases, attached any special significance to the expressions used by them.
It did not arise for their consideration whether the expression ‘misjoinder of charges’ was comprehensive enough to include both ‘misjoinder of often-ces’ and ‘misjoinder of persons’. In my judgment, the argument that the pronouncement in any of. these cases has attached to the expression ‘misjqinder of charges’ the special meaning of only ‘misjoinder of offences’ must be totally rejected.
19. The only case in which the Supreme Court appears to have considered the question of misjoinder after the amending Act came into force is that of Willie Slaney v. State of Madhya Pradesh,
(S) AIR 1956 SC 116. Their Lordships did not decide the effect of the amendment but Bose, J. stated at page 123 of the report:
“It is possible (though we need not so decide in this case) that the recent amendment to Section 537 in the Code of Criminal Procedure (Amendment) Act XXVI of 1955, where misjoinder of charges has been placed in the curable category will set at rest the controversy that has raged around the true meaning of 28 Ind App 257. In any case, our opinion is that the real object of the Code is to leave these matters to the discretion and vigilance of the Courts”.
Another observation of his Lordship, which supports the view which I have expressed, is to be found at page 127:
“In our opinion, sections 233 to 240 deal with joinder of charges and they must be read together and not in isolation. They all deal with the same subject-matter and set out different aspects of it”.
I may also quote an observation of Chandrasekhara Aiyar, J. which is at page 135:
“The scope of the decision in 28 Ind App 257 has become so circumscribed that it is doubtful if it applies to the generality of cases of omissions and defects that come before the courts, excepting where they bring about the result that the trial was conducted in a manner different from that prescribed by the Code”.
20. The case of Ram Kishan v. State, (S) AIR
1956 All 462 is directly in point. Asthana, J. has
held:
“Sections 233 to 240, Criminal Procedure Code,
deal with joinder of charges whether against the
same person in respect of different offences or whe
ther against different persons in respect of different
offences. It is immaterial whether the misjoinder
is in respect of different offences committed by the
same person or in respect of different offences com
mitted by different persons. The words used in Section 537 are not misjoinder of offences or accused per
sons. They are misjoinder of charges. In my opi
nion these words clearly include misjoinder of of
fences or of accused persons”.
This decision was followed by a Bench of the same
High Court (consisting of Asthana, J. himself sitt
ing with S. N. Sahai, J.) in Ahmad Hussain v. State,
AIR 1958 All 443. The opinions expressed in these
two cases are thus fully in consonance with the con
clusions which I have reached.
20a. Reference has been made on behalf of the State to Ramkrishna Panicker v. State, AIR 1959 Kerala 372. Their Lordships came to the conclusion in that case that there was no misjoinder, but stated that, even if there was a misjoinder, it had “not been shown that the so-called misjoinder of charges or persons had caused any prejudice to the accused persons or occasioned a failure of justice”. Koshi, C. J. further said:
“Clause (b) of Section 537, Criminal Procedure Code, reintroduced by the Criminal Procedure Code Amendment Act, XXVI of 1955, is a complete answer to the contention that the alleged misjoinder has vitiated the trial”.
Mr. Tarni Prasad has referred to the case of Umer Saheb v. State,. AIR 1960 Bom 205. I do not, however, think that that decision is of any help to us in the present case. Shah, J., who has delivered the judgment, has stated that, as a result of the new Clause (b) of Section 537, “a misjoinder of charges is to be regarded merely as an irregularity and not an illegality”, but the point in the case before him was not one of misjoinder of charges. It has been held in that case that an infringement of Section 222(2) of the Code of Criminal Procedure vitiates the trial ia which it occurs; but a contrary view, has been expressed in AIR 1960 SC 661.
21. The true effect and scope of Clause (b) of Section 537, therefore, must be held to be that misjoinder of charges, including misjoinder of offences and persons, is curable under Section 537, and a finding, sentence or order of a competent Court cannot be reversed or altered on the ground of such misjoinder unless it has, in fact, occasioned a failure of justice. The decisions in which it was held before the amendment that misjoinder of charges constituted an illegality which vitiated the trial have, therefore, been superseded, and the principles laid down in them have ceased to be good law.
22. The explanation to Section 537 provides that, in determining the question whether a failure of justice has been occasioned, the Court has to consider whether objection was raised at an early stage of the proceeding. As I have already said, no objection was raised at the trial in the present case. Mr. Tarni Prasad has argued that prejudice has been caused in this case to petitioners Nos. 12 to 15 because, it they had been prosecuted only for the offence under Section 11 of the Gambling Act, they might have been let off with a fine.
Sentence is a matter of discretion, and it is impossible to say that these petitioners would not have been sentenced to imprisonment for one month if they had not been tried along with the other petitioners. I am unable to agree that any prejudice has been caused to them. Mr. Tarni Prasad has not even suggested that prejudice has been caused to any of the other petitioners. In these circumstances, it is manifest that the convictions of the petitioners cannot be interfered with on the ground of misjoinder.
23. Another point which Mr. Tarni Prasad has raised is that the offence under Section 224 of the Penal Code has not been established against Jamal (petitioner No. 11). I cannot accept this argument because the learned Additional Judicial Commissioner has relied upon the evidence of P. Ws. 5, 6, 7 and 17, and has held that Jamal intentionally attempted to escape from the Assistant Sub-Inspector’s custody. No reason has been given why we should interfere with this finding of fact.
24. Mr. Tarni Prasad has stated that petitioners Nos. 12 to 15 have already served their sentences; but he has urged that the sentences imposed upon petitioners Nos. 2 to 7 may be reduced as they have already suffered imprisonment for about a month each, and it will be unnecessary to send them back to jail for a short period. I accept this submission, and\ reduce the sentences imposed upon petitioners Nos. 2 to 7 to the period already undergone. Subject to this modification, the application is dismissed.
Untwalia, J.
25. I agree.