A joint trial of offences triable by a jury and offences triable by a judge is permissible under the Code of Criminal Procedure, and Section 269 (3) of the Code provides for the procedure to be followed in such cases. A joint trial is not invalid or void if the form of the trial is erroneous, unless the accused is prejudiced by the error.

( 1 ) THIS is an application for a certificate that the case is a fit one for appeal to the supreme Court under Article 134 (1) (c) of the Constitution of India.

( 2 ) THE facts giving rise to the application are these. Six accused persons, namely, sultansingh, Saboo, Bisram, Laxman, Suratsingh and Durga, were prosecuted in the Court of the Additional Sessions Judge, Jabalpur, under Sections 452, 395 and 397 of the Indian Penal Code for having entered the house of Achhelal on the night between the 6th and 7th August 1958 and for having committed dacoity therein, armed with deadly weapons. One other accused, Dhaniram, was charged under section 412 of the Indian Penal Code in the same Court in relation to the same dacoity. The latter offence, namely, under Section 412 of the Indian Penal Code, was triable by a jury, while the other offences, namely, under Sections 452, 395 and 397 of the Indian Penal Code, were triable by the judge himself.

( 3 ) THE offences under Sections 452, 395 and 897 of the Indian Penal Code, with which the six accused were charged, were tried by the judge himself, while the offence under Section 412 of the Indian. Penal Code, with which the accused dhaniram, was charged, was tried by him with the help of a jury. The procedure at the trial for both classes of offences up to the point of summing up was the same. Thereafter, the judge summed up the case for the jury with respect to the offence with which Dhaniram was charged and recorded their verdict. The jury held the accused not guilty of the offence under Section 412 of the Indian, Penal Code but gave a unanimous opinion that he Was guilty of an offence under Section 411, ibid. The judge thereafter convicted him under Section 411 of the Indian Penal code and sentenced him to rigorous imprisonment for a period of one year. As regards the trial of the other accused, it was wholly conducted by the judge himself and we are not concerned with that part of the trial here.

( 4 ) NO objection was taken by the accused applicant to this mode of trial either during the trial or in the course of the appeal.

( 5 ) FOR the first time, in the application for a certificate that the case is a fit one for appeal to the Supreme Court under Article 134 (1) (c) of the Constitution, objection is being taken to the mode of the trial. It is now contended that the trial of the applicant jointly with the other accused was illegal and had so prejudiced him as to lead to a miscarriage of justice and that consequently his conviction under Section 411 I. P. C. was liable to be set aside. This was the only ground pressed before us, and on its basis a certificate of fitness was asked for.

( 6 ) IN our opinion, there is no substance in the contention of the learned counsel for the applicant. Firstly, Section 233 of the Code of Criminal Procedure 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 the cases mentioned in Sections 234, 235, 236 and 239. Under Section 239 (e), persons accused of an offence which includes theft, extortion, or criminal misappropriation, and, persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence may be charged and tried together. The accused-applicant Dhaniram could thus validly be tried together with the other accused. It is at this stage that a difficulty arises, because all the accused were not charged with all the offences and also because some of the offences were triable by a jury and the others were not. Even so, if all the accused, in respect of all the offences had been tried wholly either by the jury or by the judge without objection from the accused, the trial would not have been invalid: (see Section 536 o