BIRICHH BHUIAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal by certificate raises the question of the scope of S. 537 of the Criminal Procedure Code.

(2.) 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 Bhians, male and female, were dancing close to the outpost. Some of them hearing the noise rushed with lathies to the outpost, 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 raided the outpost, looted some properties and assaulted the informant and others; the second against the appellant 5 and 4 others under S. 224 of the Indian Penal Code and the 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. I to 4 under S. 147 of the Indian 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 of the former offence. No sentence was imposed for the later offences. The appellant No. 5, along with 4 others 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 year'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 mis-joinder of charges. None-the-less 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 mis-joinder 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.

(3.) 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, 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 mis-joinder of charges within the meaning of said expression.