Birichh Bhuian & Ors Vs. State of
Bihar  INSC 325 (20 November 1962)
IMAM, SYED JAFFER AYYANGAR, N. RAJAGOPALA
CITATION: 1963 AIR 1120 1963 SCR Supl. (2)
CITATOR INFO :
R 1963 SC1850 (33) R 1989 SC 129 (9)
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).
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 SubInspector 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 charges within the meaning of said
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 there under.
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,
 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.
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
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 SubDivisional 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 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 contained, no finding, sentence or order passed
by a Court of competent jurisdiction shall be reversed or altered under Chapter
XXVII or on appeal or revision on account.........
(a) of any error, omission or irregularity in
the complaint, summons, warrant, proclamation, order, judgment or other proceedings
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, irregularity, or mis-direction has in
fact occasioned 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
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
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 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
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.
(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 provision 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)  S.C.R. 344.
(2) A.I.R. 1960 S.C. 661.
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 forbidding
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 joiner 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 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