Francis W Maclean, K C I E C J -
(1.) The question submitted for our consideration upon this reference is "whether s. 537 of the Code of Criminal(sic) can be applied to any case in which the trial has been held on charges (sic) together, contrary to Section 234 of the Criminal P. C.." From the statements on the reference, it would appear that the petitioner Abdur Rahman, was tried on a charge (1) of extortion committed on 1 February 1898, and upon two other charges, whilst the other petitioner Keramat was tried only upon the two latter charges. The reference states- -and this has not been contested--that so far as the first-mentioned offence, it could not properly be tried in the same trial ( Section 234, Criminal P. C.) with the other offences, as they were not committed within one year and the petitioners contend that the trial was illegal and void by reason of the addition of the charge for the offence committed on 1 February 1898, and that this illegality could not be cured under Section 537 of the Code.
(2.) Put shortly, the case raised by the petitioners is that inasmuch as, Tinder Section 233 of the Code, for every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately (saving the exceptions mentioned), and that, inasmuch as that course was not pursued in the trial of the present petitioners, what was done was illegal, and, if illegal, the illegality cannot be regarded as a mere error, omission, or irregularity under Section 537 of the Code; and, if so, that the latter section has no application to the case. That contention is admittedly based upon three decisions of this Court. In the matter of Luchminarain (1886) 1. L.R., 14 Cal, 128; Queen-Empress V/s. Chandi Singh (1889) I.L.R., 14 Cal, 395; Raj Chunder Mozumdar V/s. Gour Chunder Mozumdar (1894) I.L.R., 22 Cal, 176, cases, however, which are at variance, so far as the principle is concerned, with those which have been cited to us, and which are Queen-Empress V/s. Kutti, 1888) I.L.R., 11 Mad., 441; Queen-Empress V/s. Ramana (1889) I.L.R., 12 Mad., 273; Queen-Empress v. Mulua (1893) I.L.R., 14 All, 502; and Beg. V/s. Sanrmmta (1877) I.L.R., 14 Bom., 610. But for the views expressed by the Judges of this Court, and which are entitled to every respect, I should scarcely have thought the point was open to very serious argument. The failure to try the charge separately was certainly an error, omission, or irregularity in the proceedings before or during the trial, an irregularity, however, to which no exception was taken by the accused at the time of trial. It might then have been taken. But, unless such error, omission or irregularity has occasioned a failure of justice, it is cured by Section 537. I am unable to accept the view suggested by the learned Counsel for the petitioner, that the error or irregularity was not in proceedings before or during trial, but in some proceeding dehors the trial altogether. I dare say it is my own want of appreciation, but I have not been able to follow that line of argument.
(3.) To proceed to the cases upon which this application is based, I may point out, with regard to the first case of In the matter of Luchminarain (1886) L.R., 14 Cal, 128, that the observations made by the late Chief Justice, Sir Comer Petheram, were not necessary for the purposes of the case then under consideration. It was a mere obiter dictum. But in the later case in the same volume the same learned Judge says at page 397: "Under these circumstances we think that the trial was illegal, it having been a trial which is prohibited by the terms of the law as contained in Section 233, and we do not think that Section 537, which cures errors, omissions or irregularities, is intended to cure, or does cure, an absolute illegality.";