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PETITIONER: BIRICHH BHUIAN AND OTHERS

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT: 20/11/1962

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. IMAM, SYED JAFFER AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1963 AIR 1120            1963 SCR  Supl. (2) 328  CITATOR INFO :  R          1963 SC1850  (33)  R          1989 SC 129  (9)

ACT: Criminal  Procedure-Mis-joinder of  charges-Charge,  Meaning of-Code  of  Criminal Procedure, 1898 (Act V  of  1898),  as amended  by  Criminal Procedure Code (Amendment)  Act,  1955 (XXVI of 1955),ss. 537 (b), 233-239,4 (c).

HEADNOTE: The  Sub-Inspector of Police arrested, five out of 10 to  15 persons  gambling by the side of the road and as one of  the arrested person adopted a violent attitude, he, took them to the out-post and ordered him to be handcuffed whereupon,  he began to abuse the Sub-Inspector.  A large number of Bhuians were dancing close to the out-post and on hearing the  noise some  of  them  rushed  with  lathies,  assaulted  the  Sub- Inspector and two constables and looted the out-post.  Three chargesheets  were filed in the court of the  Sub-Divisional Officer  in  respect  of the said  incidents  under  several sections  of  the Penal Code and under s. II of  the  Bengal Public Gambling Act, who after taking cognizance transferred those  cases to the Court of the Magistrate, 1st class,  who held  a joint trial on a petition filed by  the  Prosecuting Inspector and by his single judgment convicted and sentenced them  under various sections, against which, the  appellants preferred an appeal to the Court of the Additional  judicial Commissioner of Ranchi, who held, that the offence under  s. II  of the Bengal Public Gambling Act was not  committed  in the  course  of the same transaction as the  other  offences were committed at the Police Post a ad therefore there was a mis-joinder  of charges, but the said defect was curable  as no  prejudice  had  been  caused  to  the  appellants.   The appellants  preferred a revision petition to the High  Court which  was dismissed.  In this Court it was urged on  behalf of  the  appellants  that  the  expression  ’mis-joinder  of charges’ in s. 537 (b) of the Code must be confined only  to mis-joinder  of accusations and therefore a joint  trial  of offences and persons outside the scope of ss. 233 to 239  of the  Criminal  Procedure Code, would not be  mis-joinder  of

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charges within the meaning of said expression. Held, that after the Amendment Act XXVI of 1955 there is  no scope for contending that mis-joinder of charges is not 329 saved  by s. 537 of the Criminal Procedure Code, if  it  has not occasioned a failure of justice. The  amendment  steered clear of the conflict  of  view  and expressly  included the mis-joinder of charges in the  error and irregularities which could be cured thereunder. Subrahmania  Ayyar  v.  King Emperor, (1902)  1.  L.  R.  25 Mad.61,  Abdul Rehman v. The King Emperor, (1927)  I.L.R.  5 Rangoon 53, Babu Lal Choukhani v. Emperor, (1938) I. L. R. 2 Cal.  295, Pulukuri Kotayya v. King Empreor, I. L.  R.  1948 Mad. 1, Janardan Reddy v. State of Hyderabad, [1951] S. C. R. 344 and Kadiri Kunhahammad v. State of Madras, A.   I. R. 1960 S. C. 661, referred to. A charge is a precies formulation of a specific  accussation made  against  a person of an offence alleged to  have  been committed by him.  Sections 234 to 239 permit the joinder of such charges under specified conditions for the purpose of a single trial.  Such. a joinder may be of charges in  respect of  different  offences  committed by  a  single  person  or several persons.  If the joinder of charges was contrary  to the  provisions  of the Code it would be  a  mis-joinder  of charges.   Section  537  prohibits  the  revisional  or  the appellate  court from setting aside a finding,  sentence  or order  passed  by a court of competent jurisdiction  on  the ground  of  such a mis-joinder unless it  has  occasioned  a failure  of  justice and the High Court  rightly  held  that there  was  no  failure  of justice in  this  case  and  the appellants were not prejudiced in any way.

JUDGMENT: CRIMINAL  APPELLATE  JURISDICTION  :  Criminal  Appeal   No. 224/60. Appeal from the judgment and order dated October 7, 1960, of the Patna High Court in Criminal Revision No. 979/1958. K. K. Sinha, for the appellants. S.   P. Varma, and R. N. Sachthey, for the respondent. 1962.   November  20..  The.  judgment  of  the  Court   was delivered by 330 SUBBA RAO, J.-This appeal by Certificate raises the question of the scope of s. 537 of the Criminal Procedure Code. The facts are not in dispute and may be briefly stated.   On September 16, 1956, at about 3-55 P.M. the Sub Inspector  of Police, attached to Chainpur outpost, found 10 to 15 persons gambling  by the side of the road.  He arrested five out  of them  and the rest had escaped.  The Sub Inspector took  the arrested persons to the out-post and as one of the  arrested persons Jamal adopted a violent attitude, he ordered him  to be handcuffed whereupon he began to abuse the Sub Inspector. It happened that a large number of Bhuians, male and female, were dancing close to the outpost.  Some of them hearing the noise  rushed  with lathies to the out-post,  assaulted  the Sub-Inspector  and two constables and looted  the  out-post. Three  charge-sheets  were filed in the court  of  the  Sub- Divisional  Officer in respect of the said incidents,  first against the appellants Nos. 1 to 4 and others under ss. 147, 452  and  379 of the Indian Penal Code  alleging  that  they raised the outpost, looted some properties and assaulted the informant  and others; the second against the  appellants  5 and  4 others under s. 224 of the Indian Penal Code and  the

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third  against appellant No. 5 and 4 others under s.  11 of the  Bengal  Public Gambling Act.  The said  Sub  Divisional Officer  took cognizance of the said cases  and  transferred them  to the court of the Magistrate 1st Class,  Daltonganj. On December 29, 1956, on a petition filed by the Prosecuting Inspector  the said Magistrate held a joint trial.  On  July 22,   1957,  he  delivered  a  single  judgment convicting appellants Nos. 1 to 4 under s. 147 of the India Penal  Code and  also under ss. 452 and 380/34 of the Indian Penal  Code and sentencing them to undergo rigorous imprisonment for one year  for the former offence.  No sentence was  imposed  for the  latter  offences.  The appellant No. 5,  along  with  4 others 331 was  convicted  under s. 224 of the Indian  Penal  Code  and sentenced  to two years’ rigorous imprisonment and was  also convicted under s. 11 of the Bengal Public Gambling Act, and ss. 353 and 380/34 of the Indian Penal Code, but no separate sentence  was awarded for the said offences.  The  appellant and others preferred an appeal against the said  convictions and  sentences  to  the court  of  the  Additional  judicial Commissioner of Ranchi and he by his judgment dated July 10, 1958, convicted the appellants Nos.  1 to 4 under s. 147  of the Indian Penal Code and acquitted them in respect of other charges.   The  conviction of the appellant No. 5  under  s. 224, Indian Penal Code, was maintained but the sentence  was reduced to one years’s rigorous imprisonment and a  sentence of  rigorous  imprisonment  for one  month  was  imposed  on appellants  Nos.  4  and 5 and others under s.  11.  of  the Bengal   Public   Gambling  Act.    The   learned   judicial Commissioner held that the offence under s. 11 of the Bengal Public  Gambling Act was not committed in the course of  the same transaction as the other offences were committed at the police-post and therefore there was a misjoinder of charges. Nonetheless  he held that the said defect was curable as  no prejudice had been caused to the appellants.  The appellants preferred   a  revision  petition  to  the  High  Court   of judicature  at Patna and the said High Court  dismissed  the same  on  the  ground that by reason of  s.  537(b)  of  the Criminal  Procedure  Code the conviction could  not  be  set aside  as the said misjoinder of charges did not occasion  a failure  of justice.  The present appeal was  filed  against the said order on a certificate issued by the High Court. The  learned  counsel for the appellants contended  that  s. 537(b)  of  the  Criminal Procedure  Code  could  only  save irregularities in the matter of framing of charges but could not  cure  a joint trial of charges against  one  person  or several persons, 332 that  was  not  sanctioned by  the  Code.   Elaborating  his argument  the learned counsel contended that the  expression ’mis-joinder  of charges’ in s. 537(b) of the Code  must  be confined only to mis-joinder of accusations-according to him charge in the Code means only an accusation-and therefore  a joint trial of offences and persons outside the scope of ss. 233  to  239, of the Criminal Procedure Code, would  not  be misjoinder of charges within the meaning of said expression. As  the question raised turns upon the construction  of  the provisions  of  s. 537 of the Criminal  Procedure  Code,  it would be convenient to read the material part of it at  this stage :-               "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

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             appeal or revision on account.........               (a)   of  any error, omission or  irregularity               in  the  complaint,  summons,  warrant,   pro-               clamation,  order,  judgment  or  other   pro-               ceedings  before  or during trial  or  in  any               inquiry or other proceedings under this  Code,               or               (b)   of  any error, omission or  irregularity               in  the  charge, including any  misjoinder  of               charges, or               (c)   xx xx xx xx               (d)   of  any misdirection in any charge to  a               jury  unless  such  error,  omission,  irregu-               larity,  or  mis-direction has in  fact  occa-               sioned a failure of justice.               EXPLANATION:-In determining whether any error,               omission or irregularity in any               333               proceeding  under  this Code  has  occassioned               failure  of  justice,  the  Court  shall  have               regard to the fact whether the objection could               and  should  have been raised  at  an  earlier               stage in the proceedings. Clause  (b)  was  inserted by Act XXVI of  1955.   The  word ’charge’  which  occured after ’warrant’ in clause  (a)  was omitted  and  the new clause which specifically  relates  to charge  was added.  Further the expression  ’mis-joinder  of charges’ was included in the general terms "error,  omission or  irregularity in the charge’.  The object of the  section is manifest from its provisions.  As the object of all rules of  procedure is to ensure a fair trial so that justice  may be done, the section in terms says that any violation of the provisions to the extent narrated therein not resulting in a failure of justice does not render a trial void.  The  scope of  clause  (b)  could  be  best  understood,  if  a   brief historical   background  necessitating  the  amendment   was noticed.   The  judicial Committee in Subrahmania  Ayyar  v. King  Emperor  (1)  held that the disregard  of  an  express provision  of  law as to the mode of trial was  not  a  mere irregularity  such  as could be remedied by s.  537  of  the Criminal  Procedure  Code.   There the  trial  was  held  in contravention  of the provisions of ss. 233 and 234  of  the Code of Criminal Procedure which provide that every separate offence  shall be charged and tried separately  except  that the three offences of the same kind may be tried together in one charge if committed within a period of one year.  It was held that the mis-joinder of charges was not an irregularity but  an  illegality  and therefore  the  trial  having  been conducted  in  a  manner prohibited by law was  held  to  be altogether  illegal.  The judical Committee in Abdul  Rehman v.  The King Emperor (2) considered that a violation of  the provisions of s. 360 of the Code which provides that (1)  (1902) I. L.R. 25 Mad. 61 L.R. 28.  I.A. 257. (2)  (1927) I. L. R. 5 Rangood 53 ; L.R. 54 I.A. 96. 334 the depositions should be read over to the witnesses  before they sign, was only an irregularity curable under s. 537  of the Code.  Adverting to Subrahmania Ayyar’s case it  pointed out  that the procedure adopted in that case was  one  which the Code positively prohibited and it was possible that  it might  have  worked actual injustice to the  accussed.   The question  again  came before the Privy Council in  Babu  Lal Choukhani  v.  Emperor  (1).  One of the  points  there  was whether the trial was held in infringement of s. 239 (d)  of the  Criminal  Procedure Code.  The Board held that  it  was

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not.   Then  the  question was posed that  if  there  was  a contravention of the said section, whether the case would be governed by Subrahmania Ayyar’s case or Abdul Rehman’s case. The  Board  did not think it was necessary  to  discuss  the precise  scope  of what was decided in  Subrahmania  Ayyar’s case  because  in their understanding of s. 239 (d)  of  the Code  that question did not arise in that case.   The  point was  again mooted by the Board in Pulukuri Kotayya  v.  King Emperor  (2) . In that case there had been a breach  of  the proviso  to  s. 162 of the Code.  It was held  that  in  the circumstances of the case the said breach did not  prejudice the  accused  and therefore the trial was saved  by  s.  537 thereof.  Sir John Beaumont speaking for the Board  observed at  p. 12 "When a trial is conducted in a manner  different from that prescribed by the Code, as in Subrahmania Ayyar v. King  Emperor,  (3)  the trial is bad, and  no  question  of curing an irregularity arises, but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity  occurs  in  the course of  such  conduct,  the irregularity  can be cured under s. 537, and no the less  so because the irregularity involves, as must nearly always  be the case, a breach of one or more of the very  comprehensive provisions  of the Code.  The distinction drawn in  many  of the cases in India between an illegality and an (1) (1938) I.L.R. 2 Cal. 295.  (2) I.I.R. 1948 Mad. 1. (3) I.L.R. (1902) 26 Mad. 1. 335 irregularity is one of the degree rather than of kind".   It will  be ’seen from the said observations that the  judicial Committee  left  to  the courts to ascertain  in  each  case whether  an  infringement  of  a provision  of  Code  is  an illegality or an irregularity.  There was a marked  cleavage of opinion in India whether the later decisions of the Privy Council  modified  the  rigor  of  the  rule  laid  down  in Subrahmania Ayyar’s case and a view was expressed in several decisions  that  a  mere  misjoinder  of  charges  did   not necessarily vitiate the trial unless there was a failure  of justice,  while other decisions took a contrary view.   This court  in Janardan Reddy v. The State of Hyderabad (1)  left open  the  question for future decision.  In this  state  of law,  the  Parliament  has intervened to  set  at  rest  the conflict by passing Act XXVI of 1955 making a separate  pro- vision in respect of errors, omissions or irregularities  in a  charge and also enlarging the meaning of  the  expression such  errors etc. so as to include a misjoinder of  charges. After  the amendment there is no scope for  contending  that mis-joinder  of  charges  is  not saved by  s.  537  of  the Criminal Procedure Code if it has not occassioned a  failure of justice. The  next  question  is  what is the  meaning  of  the  word "charges’  in the expression ’misjoinder of  charges’.   The word  ’charge’,  the  learned  counsel  for  the  appellants contends  means  only  an  accusation  of  a  crime  or   an information given by the Court of an allegation made against the  accused.  Does the section only save irregularities  in the matter of mis-joinder of such accusations ? Does it only save  the irregularities committed in mixing up  accusations in  respect of offences or persons the joinder  whereof  has been  permitted by the provisions of the Criminal  Procedure Code  ? The misjoinder cured by the section, it is said,  is illustrated  by  the decision in Kadiri Kunhahammad  v.  The State  of  Madras  (2).  There in a case  of  conspiracy  to commit a breach of (1) [1951] S.C.R. 344. (2) A.I.R. 1960 S.C. 661.

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336 trust  a separate charge was framed in contravention of  the proviso  to  s. 222 of the Criminal Procedure Code  i.e.  in regard  to  an  amount  misappropriated  during  the  period exceeding  one  year.   This  Court held  that  as  acts  of misappropriation  committed  during the course of  the  same transaction  could  be  tried together  in  one  trial,  the contravention  of s. 222 was only an irregularity, for  that act  of misappropriation could have been split up  into  two parts, each of them covering a period less than one year and made subject of a separate charge.  In that view it was held that  s.  537 saved the trial, as there was  no  failure  of justice.  There a joint trial was permitted by the  relevant provisions  of the Code, but the defect was only  in  having one charge instead of two charges.  The question is  whether the  expression should be given only the limited meaning  as contended  above.  The word "charge’ is defined in s.4  (c). It says that the charge includes any head of a charge  where charge contained more heads than one.  This definition  does not  throw any light, but it may be noted that that is  only an  inclusive  one.  Chapter XIX provides for  the  form  of charges and for joinder of charges.  Section 221 to 232 give the  particulars that a charge shall contain and the  manner of  rectifying defects if found therein.  Section  221  says that in every charge the court shall state the offence  with which  the; accused is charged.  Section 222  provides  that the charge shall contain such particulars as to the time and place of the alleged offence and the person against whom  or the  thing  in  respect of which it was  committed,  as  are reasonably  sufficient  to give the accused  notice  of  the matter with which he is charged.  Section 233 repeats that a charge shall also contain such particulars mentioned in  ss. 221, and 222.  The form of a charge prescribed in Schedule 5 shows that it contains an accusation that a person committed a particular offence.  It is, therefore, clear that a charge is not an accusation made or information 337 given in abstract but an accusation made against a person in respect  of  an act committed or omitted in violation  of  a penal  law forbiding or commanding it. In other words it  is an  accusation  made  against a person  in  respect  of’  an offence  alleged  to  have been committed by  him.   If  so, sections  234  to  239 deal with joinder  of  such  charges. Section  233 says that for every distinct offence  of  which any person is accused, there shall be a separate charge  and every such charge shall be tried separately, except in cases mentioned in ss. 234, 235, 236 and 239.  Sections 234 to 236 permit  joinder of charges and trial of  different  offences against  a single accused in the circumstances mentioned  in those  sections  and  s. 239 provides  for  the  joinder  of charges and the trial of several persons.  The scheme of the said  sections  also indicates that a charge is not  a  mere abstraction  but a concrete accusation against a  person  in respect  of an offence and that their joinder  is  permitted under  certain circumstances whether the joinder of  charges is against one person or different persons.  If the  joinder of  such  charges  is  made in  contravention  of  the  said provisions  it will be misjoinder of charges.  As  we,  have noted already, before sub-section (b) was added to s. 537 of the Criminal Procedure Code there was a conflict of view  on the   question  whether  such  a  misjoinder  was  only   an irregularity which could be cured under that section, or  an illegality which made it void.  The amendment steered  clear of  that conflict and expressly included the  misjoinder  of charges  in  the errors and irregularities  which  could  be

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cured  thereunder.   To summarise : a charge  is  a  precise formulation  of a specific accusation made against a  person of  an  offence  alleged  to have  been  committed  by  him. Sections 234 to 239 permit the joinder of such charges under specified  conditions  for the purpose of  a  single  trial. Such  a  joinder may be of charges in respect  of  different offences  committed by a single person or  several  persons. If 338 the joinder of charges was contrary to the provisions of the Code  it  would be a mis-joinder of  charges.   Section  537 prohibits the revisional or the appellate court from setting aside  a  finding, sentence or order passed by  a  court  of competent  jurisdiction on the ground of such  a  misjoinder unless it has occasioned a failure of justice.  In this case there  was  a clear misjoinder of  charges  against  several persons.  But the High Court held that there was no  failure of  justice  and the appellants had their full  say  in  the matter  and  they  were  not prejudiced  in  any  way.   We, therefore, hold that the High Court was right in not setting aside the convictions of the accused and the sentence passed against them. In the result the appeal fails and is dismissed.                           Appeal dismissed.