J.C.Mishra - (1.) -This revision has been filed by the accused against the judgment and order dated 24.1.1984, passed by Sessions Judge, Bijnor, directing retrial of the accused after setting aside the conviction and sentence on account of misjoinder of charges. The revisionists were tried in Criminal Case No. 435 of 1983, for offences punishable under Sections 147, 323/149 and 506/149, I.P.C. for the incident that took place on 15.3.1982, while revisionist Nos. 4 and 5 Suresh Kumar and Naresh Kumar were tried for offence punishable under Section 392/506, I.P.C. for the incident that took place on the following day on 16.3.1982. The learned Sessions Judge was of the view that since the incident dated 15.3.1982 and 16.3.1982 were independent incidents and only two accused namely Suresh and Naresh were involved in the incident of 16.3.1982, the Magistrate committed illegality in trying all the accused with respect to both the incidents in the same trial. He was of the view that in the incident of 16.3.1982, only two accused namely, Suresh and Naresh were involved and, therefore, they should have been separately tried for the offence under Section 392, I.P.C. In view of these findings, the learned Sessions Judge allowed the appeal, set aside the conviction and sentence awarded and remanded the case for retrial.
(2.) FELT aggrieved with the order of retrial, the accused persons came up in revision. Despite the list being revised, none appeared either for the revisionists or for the opposite party Nos. 1 and 2 and, therefore, this revision is being disposed of after hearing the learned Additional Government advocate. In the memo of revision, it has been stated that the conviction could not be set aside merely on account of irregularity in the charge including misjoinder of charges and the said irregularity was curable. This contention appears to be correct. Section 464, Cr. P.C. provides that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid, merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges unless in the opinion of Court or appeal confirmation or revision a failure of justice has, in fact, been occasioned thereby. Sub-section (2) provides that if the Court is of the opinion that a failure of justice has in fact, been occasioned, it may in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after framing of charge of in the case of an error, omission or irregularity in the charge direct a new trial to be had upon a charge framed in whatever manner it thinks fit. Proviso to aforesaid provision states that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved it shall quash the conviction.
(3.) THE Law Commission in its 41st report observed "we are also of the opinion that a retrial should not be mandatory.......... it would be better to make the provision for ordering retrial discretionary so that a Court could pass an order appropriate in the particular circumstances of the case." In view of the aforesaid provision, the appellate court could not quash the conviction and remand the case for retrial without recording a finding that in view of misjoinder of charges failure of justice has been occasioned. The appellate court could maintain the conviction if the accused was not prejudiced by the alleged irregularity in framing charges. The judgment and order, therefore, deserves to be set aside.;