Asthana, J.:— The applicant Ram Kishan has been convicted under Secs. 325 and 379 I.P.C and has been sentenced to a fine of Rs. 50/- under Sec. 379, I.P.C and to 6 month's rigorous imprisonment under Sec. 325, I.P.C by a First Class Magistrate of Jalaun, which conviction and sentence has been upheld in appeal by the learned Sessions Judge of Orai.
2. It appears that the applicant and three other persons were found stealing the crops of one Sher Ali. When Sher Ali came to know of it he went to his fields and challenged the applicant and his companions. They threatened to beat him. He then went to the Sarpanch Budh Singh and reported the matter to him. Budh Singh sent for the applicant who had taken the bundle of stolen crops to his house. It is said that the applicant admitted before the Sarpanch that he had committed the theft of the crop. Thereupon Budh Singh sent for the chowkidar Sikandar Ali and asked him to take the applicant to the police station. While the applicant was being taken there he, on the instigation of his companions, started beating Sikandar Ali and ultimately bit his nose with his teeth. The applicant admitted in his statement that he bit the nose of Sikandar Ali but stated that he did so in his self-defence.
3. Both the lower courts after a consideration of the entire evidence on the record came to the conclusion that the applicant committed theft of the crop of Sher Ali that when he was being taken to the police station he, on the instigation of his companions beat Sikandar Ali and then bit his nose with his teeth and thereby committed the offences under Secs. 379 and 325, I.P.C They, therefore, convicted and sentenced him as above.
4. The finding of the courts below that the applicant committed theft of the crop of Sher Ali and bit the nose of Sikandar Ali Chowkidar when he was being taken to the police station by him, is a finding of fact and is binding on me in revision. Learned counsel for the applicant was not able to point out anything to me in revision which would justify me to interfere with this finding of fact.
5. It was contended before me on behalf of the applicant that the applicant and the other accused could not be tried together for the offences under Secs. 379, 325 and 325/114, I.P.C; that there was misjoinder of offences and accused persons and therefore the entice trial was vitiated. It was further contended that the offences under Secs. 379 and 325, I.P.C were not committed in the course of the same transaction and, therefore, Sec. 235, Cr. P.C was not applicable to the case. It is somewhat doubtful if the two offences under Secs. 325 and 379, I.P.C were committed in the course of the same transaction. After committing the theft the applicant had gone away and he was subsequently sent for by the Sarpanch on receipt of some information that he had committed theft and thereafter he was taken to the police station. Sec. 537, Cr. P.C, as amended, clearly says that no trial shall be vitiated on account of misjoinder of charges unless it has caused prejudice to the accused. It was contended for the applicant that Sec. 537 was applicable only to misjoinder of offences and not to misjoinder of both offences and accused persons. I am afraid I am not able to accept this contention. Secs. 233 to 240, Cr. P.C deal with joinder of charges whether against the same person in respect of different offences or whether against different persons in respect of different offences. It is immaterial whether the misjoinder is in respect of different offences committed by the same person or in respect of different offences committed by different persons. The words used in Sec. 537 are not misjoinder of offences or accused persons. They are misjoinder of charges. In my opinion these words clearly include misjoinder of offences or of accused persons. In this connection reference may be made to W. Slaney v. State of M.P A.I.R 1956 S.C 116. where it was held that Sec. 537 was applicable to all kinds of misjoinder of charges against the provisions of Secs. 234 to 239, Cr. P.C, as well as to those cases where no charge had been framed at all, and the trial would not be vitiated unless it was established that the accused had been prejudiced on account of such misjoinder of charges. I am, therefore, of opinion that Sec. 537, Cr. P.C is applicable to the present case and as there is nothing on the record to show that the applicant has been prejudiced the trial is not vitiated.
6. It was next contended that Sec. 537, Cr. P.C was ultra vires of the Constitution as it contravened the provisions of Art. 21 of the Constitution. This contention too, in my opinion, has no force. Art. 21 provides that no person shall be deprived of his life and personal liberty except according to procedure established by law. Sec. 537, Cr. P.C, in my opinion, does not lay down anything which contravenes the provisions of Art. 21. It does not lay down that an accused person shall be convicted without any proper trial. What it lays down is that if there is any irregularity in the procedure which does not cause any prejudice to the accused this irregularity should not vitiate the whole trial and the conviction following it. Sec. 537 is a part of the same procedure which lays down in what manner the trial is to be held and what is to happen in case there is any irregularity in the manner of the trial which does not cause any prejudice to the accused. Art. 21 is not intended to be a constitutional limitation upon the powers of the Legislature otherwise conferred by the Constitution. Its object is simply to serve as a restraint upon the executive so that it may not proceed against the life fir personal liberty of an individual, save under the authority of some law and in conformity with the procedure laid thereunder. There is nothing in the Constitution which provides that the Legislature has got no power to make provision if some irregularity is committed in the procedure laid down for the trial. In absence of any such limitation I am of opinion that it was open to the Legislature to enact Sec. 537 and provide therein that in case of certain irregularities the trial should not be vitiated if there is no prejudice to the accused. What the Constitution has guaranteed under Art. 21 is that no person shall be deprived of his life and personal liberty except in accordance with the provisions of law. There is nothing in it to restrict the powers of the Legislature as to what should be the procedure for trial. In my opinion Sec. 537, Cr. P.C does not in any way contravene Art. 21 of the Constitution and is perfectly valid.
7. It was next contended that the Sarpanch or the Chowkidar had no power of arrest as the offence of theft had not been committed in their presence. There is no doubt that the theft was not committed in the presence of either of them. The evidence on the record is to the effect that the applicant admitted the commission of the theft before the Sarpanch. Sec. 59, Cr. P.C provides:
“Any private person may arrest any person who in his view commits a non-bailable and cognizable offence, or any proclaimed offender, and without unnecessary delay, shall make over any person so arrested to a police-officer, or, in the absence of a police-officer, take such person or cause him to be taken in custody to the nearest police-station.”
8. Even if it is accepted that the Chowkidar was not empowered to arrest the applicant and take him to the police station because the theft was not committed in his view or in his presence, there is no doubt that the applicant exceeded his right of self-defence. It appears from an examination of the record that he inflicted a number of injuries on the chowkidar and ultimately chopped off his nose, whereas he himself did not receive a single injury. In view of this fact he has been rightly convicted of the various offences and I see no satisfactory reason to interfere in revision. The application is, therefore, rejected. As the applicant is on bail he shall surrender to it and serve out his sentence.
9. Application rejected.