JUDGMENT
Dalal, J.
1. Sewak and Sumer have applied in revision from their conviction under Section 216, I.P.C. It is not explained how they came to be tried jointly when distinct offences were alleged to have been committed by Sumer and Sewak. Sumer was charged with harbouring two absconding offenders Lallu and Nepal and Sewak with the same offence with respect to two different persons, Sobha and Ram Nath. It is laid down in Section 233, Criminal P.C. that there will be separate charges for distinct offences except in the cases mentioned in Sections 234, 235, 236 and 239. It is also directed that every such charge shall be tried separately. Only Section 239 covers the case of more than one person tried together. There is no conspiracy alleged between Sumer and Sewak and they have not been accused of committing the same offence in the course of the same transaction. The present case is not covered by the provisions of Section 239. The learned Judge who heard the appeal admitted so far, but considered the joint trial to be merely irregular, and excused the irregularity on the ground that the appellants had not been prejudiced. He evidently was referring to the provisions of Section 537 where an irregularity in a charge is excused where it has in fact not occasioned a failure of justice. The present, however, is not an irregularity in the framing of a charge, but goes further, and covers an irregularity in a trial which is prohibited by law. Further, this disobedience to the provisions of the law cannot be considered a mere irregularity. This was definitely laid down by their Lordships of the Privy Council in the case of Subramania Ayyar v. Emperor [1902] 25 Mad. 61. At p. 97 their Lordships say that they were unable to regard the disobedience to an express provision of the law 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 contrary to the provisions of the law. They further say the remedy of mere irregularities is familiar in most systems of jurisprudence, but it would be an extraordinary extension of such a breach of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes within the description of error, omission or irregularity.
2. When a trial is not warranted by any enactment or rule, such a trial is much more than an irregularity.
3. As the sentence is a short one and the applicants must have already spent a considerable amount of money in carrying their case up to this Court I do not feel justified in ordering fresh separate trials. I set aside the conviction and sentence and order the applicants to be released.
