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Calcutta High Court
Kali Prosad Mahisal And Anr. vs Queen-Empress on 2 July, 1900
Equivalent citations: (1901) ILR 28 Cal 7
Author: Prinsep
Bench: Prinsep, Eandley

JUDGMENT

Prinsep, J.

1. Two points are taken in this application for revision. It is first contended that there has been a misjoinder of parties, and that, therefore, the trial is bad. In the next place it is contended that, on the facts found, the Sessions Judge should not properly have convicted the petitioners under Section 411, Indian Penal Code, of dishonestly receiving and retaining as stolen property, this property which had been taken by criminal misappropriation, knowing it to be such.

2. Now, in regard to misjoinder, it has been recently held by a Full Bench in In the matter of Abdur Rahman (1890) I.L.R. 27 Cal. 839 that misjoinder of charges is not fatal to the proceedings, but that it is an irregularity which requires that the Courts should consider under the terms of Section 537, Code of Criminal Procedure, whether it has in fact occasioned a failure of justice. The same rules, we think, should apply to a case of misjoinder of parties, as in the present case, and we may observe, in respect of this case, that neither before the Magistrate nor in the Appellate Court was any objection taken to the joint trial of these two petitioners before us, together with another man who was charged only with criminal misappropriation. We think, therefore, that this is not an objection which can be properly taken before us, for, to use the words of the explanation to Section 537, Code of Criminal Procedure, it could and should have been raised at an earlier stage of the proceedings, and, therefore, we may take it that, not being so raised, it has not in fact occasioned a failure of justice.

3. In respect of the other objection we think that there are ample grounds shown in the judgment of the Sessions Judge for convicting the petitioners under Section 411. The application is, therefore, refused.


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