The amendment to Section 537 of the Code of Criminal Procedure by Act XXVI of 1955 broadened the scope of the provision to include misjoinder of charges, encompassing both misjoinder of offenses and misjoinder of persons. Such misjoinder is curable under Section 537 unless it results in a failure of justice.

Sahai, J.

1. The substantial point which this case raises is as to the true effect and scope of Clause (b) which has been inserted in Sec. 537 of the Code of Criminal Procedure by the amending Act (XXVI of 1955).

2. Birichh Bhuian son of Jhari Simian, Jadooni Bhuian, Bhimla Bhuian and Kaila Bhuian (Petitioners Nos. 1, 8, 9 and 10) have been convicted under Sec, 147 of the Penal Code, and have been sentenced to undergo rigorous imprisonment for one year each. They have further been convicted under Sec. 452; but no separate sentence has been passed under that section, Birichh Bhuian son of Basu Bhuian, Saiju Bhuian, Akloo Bhuain, Gulab Bhuian, Mogla Bhuian, and Dha-ramjit Bhuian, (petitioners Nos. 2 to 7) have been convicted under Sec.147, and each of them has been sentenced to undergo rigorous imprisonment for three months. Jamal (petitioner No. 11) has been convicted under Sec.224 of the Penal Code, and has been sentenced to undergo rigorous imprisonment for one year. He has also been convicted under Sec.11 of the Bengal Public Gambling Act (2 of 1867); but no separate sentence has been passed under that section. Moti Sonar, Hussain Mian, Kesho Bhuian and Ramkhelawan Bhuian (petitioneis Nos. 12 to 15) have been convicted only under Sec.11 of the Gambling Act, and have been sentenced to undergo rigorous imprisonment for one month each.

3. The facts found by the Courts below, shortly stated, are these. On the 16th September. 1956, Assistant Sub Inspector K. P. Singh (P. W. 17), who was attached to Chainpur Out Post under Daltonganj Police station, left the outpost with constable Ramadeo Singh (P. W. 6) for village Paneri Bandh in order to execute a distress warrant. At about 3.55 p.m., when they readied near a bhatthi, the Assistant Sub Inspector found 10 to 15 persons gambling by the side of the road in village Chainpur at a distance of about 250 to 300 yards from his out-post.

The gamblers began to flee when the Assistant Sub-Inspector and the Constable approached them; but they succeeded in arresting petitioners Nos. 11 to 15 out of them. They also picked up playing cards and money from the ground. Thereafter, they took all the five arrested men to the Outpost. Jamal (petitioner No. 11) adopted a violent attitude and the Assistant Sub-Inspector ordered him to be handcuffed. While being handcuffed, Jamal began to shout and to abuse the Assistant Sub-Inspector, About 25.0 to 300 Bhuians, male an female, were dancing close to the outpost building.

A large number of them, including petitioners Nos. 1 to 10, rushed with lathis, dantas, and brickbats to the outpost, crying "maro sale ko, mudaleh ko chhora lo". Members of the mob assaulted the Assistant Sub-Imspector and the two constables, Ramdeo (P. W. 6) and Kudus (P. W.7). All the three fled away for their lives. The rioters looted several properties of the out-post as well as some articles of the Assistant Sub-Inspector and constable Kudus. When information reached Daltonganj, a Magistrate with armed force was deputed to go to Chainpur. They as well as the Deputy Superintendent of police and the Sub-Inspector of Daltonganj police station arrived there, and it was only then that the Assistant Sub-Inspector (P. W. 17) and the constables (P. Ws. 6 and 7) could return to the outpost.

4. Three first Information reports (exhibits 2/2, 3/2 and 4/2) were drawn up, and three charge-sheets were also submitted; but the Prosecuting Inspector filed an application before the Magistrate on the 29th December, 1956, praying that the three cases be tried together. The petitioners do not appear to have raised any objection, and, after hearing both sides, the learned Magistrate amalgamated all the three cases. Only one trial was accordingly held. The petitioners do not appear to have raised any objection to the joint trial in their written statement or at any stage before the trial Court. The objection was; however, taken before the lower appellate Court.

5. The facts mentioned above have