1. Joint trial for offences under the Indian Penal Code and the Bengal Public Gambling Act — Challenge to conviction based on mis-joinder of charges under Section 537, CrPC. (Para 2 )
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1962 Supreme(SC) 382
SUPREME COURT OF INDIA
20th November, 1962.
S.J. IMAM, K. SUBBA RAO, N. RAJAGOPALA AYYANGAR AND J.R. MUDHOLKAR, JJ.
Birichh Bhuian and others, Appellants
Versus
State of Bihar, Respondent.
Criminal Appeal No. 224 of 1960.
Advocate appeared
Mr. K. K. Sinha, Advocate for Appellants; M/s S. P. Varma and R.N. Sachthey, Advocates, for Respondent.
Advocates:
K.K.SINHA, R.N.SACH, S.P.Varma
K.K.SINHA, R.N.SACH, S.P.Varma
Mis-joinder of charges, whether involving a single accused or multiple persons, is a curable irregularity under Section 537(b) of the Criminal Procedure Code, provided it has not occasioned a failure of justice.
Headnote:(A) Criminal Procedure Code - Section 537(b) - Sections 233 to 239 - Indian Penal Code - Bengal Public Gambling Act - Mis-joinder of charges - Scope of curable irregularities - A finding, sentence, or order passed by a court of competent jurisdiction shall not be reversed or altered on account of any error, omission, or irregularity in the charge, including any mis-joinder of charges, unless such irregularity has in fact occasioned a failure of justice. (Paras 4, 5)
(B) Criminal Procedure Code - Section 4(c) - Definition of 'charge' - A charge is a precise formulation of a specific accusation made against a person of an offence alleged to have been committed by him. Joinder of charges under Sections 234 to 239 may involve different offences committed by a single person or several persons. Any joinder contrary to these provisions constitutes a mis-joinder of charges, which is curable under Section 537(b) if no failure of justice is occasioned. (Para 6)
Facts of the case:
Several persons were arrested for gambling, leading to a violent attack on a police outpost and looting of property. Three separate charge-sheets were filed for rioting, resisting arrest, and gambling. A joint trial was conducted, resulting in convictions. On appeal, it was observed that the gambling offence was not part of the same transaction as the other offences, constituting a mis-joinder of charges. The High Court dismissed the revision, holding that the mis-joinder did not occasion a failure of justice.
Findings of Court:
The High Court was correct in not setting aside the convictions as the mis-joinder of charges did not result in a failure of justice and the accused were not prejudiced.
Issues: Whether Section 537(b) of the Criminal Procedure Code cures a joint trial of charges against one or several persons not sanctioned by the Code, and whether the expression "mis-joinder of charges" is limited only to mis-joinder of accusations.
Ratio Decidendi: The amendment to Section 537 by Act XXVI of 1955 expressly included "mis-joinder of charges" within the scope of irregularities that do not render a trial void unless they occasion a failure of justice. A "charge" is a concrete accusation against a person for an offence. Joinder of such charges, whether against one or multiple persons, if done in contravention of Sections 233 to 239, is a mis-joinder of charges curable under Section 537(b).
Result: Appeal dismissed.
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Table of Contents
2. Whether Section 537(b) of the Criminal Procedure Code cures only irregularities in framing charges or also extends to unauthorized joint trials of persons and offences. (Para 3 )
3. Analysis of the 1955 amendment to Section 537 and the definition of charge, concluding that mis-joinder of charges is a curable irregularity absent failure of justice. (Para 5 , 6 )
4. Mis-joinder of charges, whether involving one or several persons, is an irregularity curable under Section 537(b) of the Criminal Procedure Code if it does not occasion failure of justice. (Para 5 , 6 )
5. Appeal dismissed; convictions and sentences upheld as the mis-joinder of charges did not result in a failure of justice. (Para 6 , 7 )
6. Does Section 537(b) of the Criminal Procedure Code cure the mis-joinder of charges?
Yes. Following the 1955 amendment, Section 537(b) expressly includes mis-joinder of charges among the errors or irregularities that do not render a trial void, provided such mis-joinder has not occasioned a failure of justice. (Para 5 , 6 )
7. What constitutes a charge for the purpose of determining mis-joinder under the Criminal Procedure Code?
A charge is a precise formulation of a specific accusation made against a person for an offence alleged to have been committed by them, as governed by the provisions of Chapter XIX and Sections 233 to 239. (Para 6 )
8. How is the distinction between an illegality and an irregularity determined in criminal trials?
The distinction is one of degree rather than kind. If a trial is conducted substantially as prescribed but contains an irregularity, it may be cured under Section 537; however, a trial conducted in a manner positively prohibited by law may be considered an illegality. (Para 5 )
Judgment
SUBBA RAO, J. : 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
