Harries and Rachhpal Singh, JJ.:— The appellants Mathuri, Ram Bharose, Mst. Sunder and Bishnu were, together with Sri Kishen, Suraj Prasad and Pyare Lal, tried by the learned Sessions Judge of the Farrukhabad District upon a number of charges. Mathuri and Ram Bharose were each charged with offences under sections 302 and 457 of the Indian Penal Code, Sri Kishen was charged with an offence under section 460 of the Indian Penal Code, whilst Mst. Sunder, Bishnu, Suraj Prasad and Pyare Lal were each charged with an offence under section 411, of the Indian Penal Code. All the accused were tried together upon these charges and eventually Sri Kishen, Suraj Prasad and Pyare Lal Were found not guilty of the respective charges brought against them, and acquitted. Mathuri and Ram Bharose were found not guilty of murder under section 302 and were acquitted upon that charge, but they were convicted under section 460 though they were not specifically charged with an offence under that section, the charges against them being under sections 302 and 457 only. Mst. Sunder and Bishnu were each convicted under section 411. Mathuri and Ram Bharose were each sentenced to transportation for life under section 460, whereas Mst. Sunder and Bishnu were each sentenced to a term of two years' rigorous imprisonment under section 411.

Against their respective convictions each appellant has preferred an appeal to this Court and such is the subject-matter of Criminal Appeal No. 72 of 1935. On the other hand the Local Government, being dissatisfied with the acquittal of Mathuri and Ram Bharose upon the charges under section 302 and with the acquittal of Sri Kishen upon the charge under section 460, have preferred an appeal to this Court alleging that these acquittals are against the weight of evidence and therefore illegal. Such is the subject-matter of Criminal Appeal No. 266 of 1935. Sri Kishen is not before the Court and is said to be absconding and consequently we are not concerned with his case in this judgment. However, it is convenient to dispose of the appeals of Mathuri, Ram Bharose, Mst. Sunder and Bishnu and of the Government appeal against the acquittal of Mathuri and Ram Bharose in one judgment and that is the course we propose to follow.

The charges against the appellants arose out of an occurrence which undoubtedly took place upon the night of the 17th/18th of May, 1934, at the house of one Mst. Ram Devi in mohalla Lohai in the city of Farrukhabad. On that night a burglary was committed at this house during which ornaments and jewellery to the value of about Rs. 35,000 were stolen and the occupants of the house, namely Mst. Ram Devi and a young boy Bhagwati Prasad, were foully done to death. It is the case for the prosecution that Mathuri, Ram Bharose and Sri Kishen were concerned in this burglary and that eventually part of the stolen property was received by the appellants Mst. Sunder and Bishnu and others, hence the charge under section 411 against them.

It is the case for the prosecution that Mathuri, Ram Bharose, Sri Kishen, Birja (who is said to be absconding) and Puttu Singh, who became an approver, were the persons concerned in this burglary and the murders which undoubtedly took place during the course of this occurrence. It is said that some weeks earlier Mathuri, Sri Kishen, Birja and Puttu Singh had contemplated breaking into this house but that the attempt miscarried. However, on the 17th of May, 1934, it is alleged that the miscreants met together and determined that night was a favourable opportunity to ransack this house and deprive Mst. Ram Devi of her jewellery. It is said that arrangements were made by Birja, who was temporarily acting as Mst. Ram Devi's servant, to leave the house open so that the burglars could get in without making any noise. It is the case for the prosecution that night Mathuri, Ram Bharose, Sri Kishen, Birja and Puttu Singh got into this house, remained there until the occupants were asleep and then began to break open the almirahs and boxes in which the ornaments and jewellery were stored. The noise, it is said, awoke Mst. Ram Devi and the little boy Bhagwati Prasad and the former recognized Mathuri and Birja who were well known to her. It is then said that the five men, fearing that they would be exposed, decided to kill both the widow and the little boy and this they did by strangling both of them with a rope. After the occupants of the house had been disposed of in this manner the burglars completed the work of ransacking the house and then made good their escape.

It has been strenuously contended by counsel for the appellants that the joint trial of these accused was contrary to law and that the whole trial is in consequence a nullity. It is said that there has been a misjoinder of persons and that such misjoinder is an illegality which vitiates the whole proceedings. Consequently it was urged upon us that we should, upon this ground, allow the Appeal and quash the convictions and order a re-trial. The point taken as to misjoinder of persons is a point of considerable importance and we must deal with it in some detail.

Section 233 of the Criminal Procedure Code provides 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. It is clear from this section that the general rule is that an accused person is entitled to be tried separately in respect of each charge. Exceptions are made, however, in certain cases which are dealt with in the sections referred to in section 233. Sections 234, 235 and 236 deal with cases of joinder of charges against an accused person, whereas section 239 deals with cases where persons can be jointly charged and tried together. What is urged in this case is that there has been a misjoinder of persons and that section 239 of the Criminal Procedure Code does not permit persons charged with offences under sections 302, 457 and 460 of the Indian Penal Code to be tried with persons charged with offences under section 411 of the Indian Penal Code.

The joinder of all these persons in one trial is only possible if the case comes within Sub-section (e) of section 239 of the Criminal Procedure Code and it is the contention of the prosecution that the sub-section precisely covers this case. Sub-section (e) of section 239 provides that 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 can be charged and tried together.

It is conceded by counsel for the Crown that it cannot be said that an offence under section 302 is an offence which includes theft, extortion or criminal misappropriation, but it is urged that offences under sections 457 and 460 are clearly offences which do include theft. On the other hand it is contended by counsel for the appellants that as an offence under section 302 of the Indian Penal Code does not include theft it is immaterial whether offences under sections 457 and 460 do or do not include theft. It is urged that as persons charged with receiving stolen property were charged jointly and tried together with persons accused of murder the case is clearly outside the purview of Sub-section (e) of section 239 of the Criminal Procedure Code. Counsel for the Crown, however, contended that if offences under section 457 and section 460 of the Indian Penal Code were offences which included theft, then the receivers of the stolen property could properly be joined with the persons charged under these sections. That being so, it was contended that there was nothing to prevent the prosecution charging one or more of the persons who were being tried together with other offences, provided that such a joinder of offences was permissible by other sections of the Code. Shortly put, the case for the Crown was that Mathuri, Ram Bharose and Sri Kishen could properly be jointly charged with the receivers of the stolen property because they were charged with offences under sections 457 and 460 of the Indian Penal Code which included theft. That being so, there was nothing to prevent a charge of murder being added against Mathuri and Ram Bharose because that offence formed part of the transaction which gave rise to the charges under sections 457 and 460 of the Indian Penal Code and such joinder of charges was clearly permissible under sections 235, 236 and 239(d) of the Criminal Procedure Code.

In the first place we have to consider whether or not offences under sections 457 and 460 of the Indian Penal Code are offences which include theft. In the case of Sultan Ahmad v. Emperor(1), it was assumed that an offence under section 457 of the Indian Penal Code was an offence which included theft. This is a single Judge case and is of course not binding upon us and it would appear from the judgment that no argument was addressed to the Court that an offence under section 457 did not include theft and that both parties proceeded upon the assumption that it did include theft. However, it has been strongly urged before us that an offence under section 457 of the Indian Penal Code is not an offence which includes theft and that neither does an offence under section 460 of the Indian Penal Code include theft.

The offence under section 457 of the Indian Penal Code is described as lurking house trespass or housebreaking by night in order to commit an offence punishble with imprisonment. The section reads as follows: “Whoever commits lurking house-trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a tern; which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to 14 years.” Section 457 therefore contemplates two offences—one less serious than the other—the less serious being lurking house-trespass by night or house-breaking by night in order to commit an offence (other than theft) which is punishable with imprisonment, and the more serious being the committing of lurking house-trespass by night or house-breaking by night in order to commit theft. It is urged that the more serious offence contemplated in this section is an offence which includes theft and such was the offence with which Mathuri and Ram Bharose were charged.

From the plain terms of this section it is clear that the offence is complete when the burglar has got into the house with the intention of committing theft and it is immaterial whether or not he actually succeeds in committing such theft. A burglar who has broken into a house may be discovered and surprised before he can steal anything, but clearly he would be guilty of an offence under section 457 of the Indian Penal Code though no theft had been committed. Theft frequently follows an offence under section 457, but it cannot be said that it is an essential ingredient of that offence. All that is required to complete the offence under section 457 is that the burglar or house-breaker by night should have an intention to commit theft. It matters not for the purposes of that offence whether the burglar or house-breaker by night does actually carry out his intention and commits theft.

Section 460 reads as follows: “If, at the time of the committing of lurking house-trespass by night or house-breaking by night, any person guilty of such offence shall voluntarily cause or aftempt to cause death or grievous hurt to any person, every person jointly concerned in committing such lurking house-trespass by night or house-breaking by night shall be punished with transportation for life, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.”

A person may be guilty of committing lurking house-trespass by night or house-breaking by night without being guilty of theft or without having any intention to commit theft. Lurking house-trespass by night is defined in section 444 of the Indian Penal Code and house-breaking by night in section 446 of the Indian Penal Code and it is clear that theft or an intention to commit theft is in no way a necessary or essential ingredient in either of these offences. It frequently happens that lurking house-trespass or house-breaking by night is followed by theft, but the offence can be committed without theft or any intention to commit it. That being so, an offence under section 460 is not an offence which includes theft though it may frequently form part of a transaction which also includes theft. Sri Kishen, as we have stated previously, was charged only with an offence under section 460 of the Indian Penal Code.

In our judgment neither an offence under section 457 of the Indian Penal Code nor an offence under section 460 of the Indian Penal Code is an offence which includes theft, though, as we have stated, both the offences must frequently be followed by theft and often form part of a larger transaction which may involve or include theft. However, section 239(e) of the Criminal Procedure Code only permits persons to be charged and tried together when one set are charged with an offence which includes theft whilst the other are charged with receiving or retaining or assisting in the disposal or concealment of property possession of which is alleged to have been transferred by the offence with which the first set are charged. As theft is not an essential ingredient of an offence under either section 457 or 460 of the Indian Penal Code, possession of property cannot pass as a result of either of these offences. Possession of property may pass as a result of theft following either of those offences, but it does not actually pass as a result of either of them. From the terms of section 239(e) of the Criminal Procedure Code it is in our view clear that an offence which includes theft must mean an offence of which theft is a necessary and essential ingredient. Robbery as defined by section 390 of the Indian Penal Code is clearly an offence which includes theft and so is theft in a dwelling house as defined by section 380 of the Indian Penal Code. An offence under section 382 of the Indian Penal Code includes theft and all are clearly offerees by which the possession of property is transferred from one person to another. Such offences are clearly within section 239(e) of the Criminal Procedure Code and in our view only such offences are covered by that section. An offence which may be the forerunner of a theft or which may form part of a larger transaction which might involve or include theft cannot in our judgment be said to be an offence which includes theft. That being so, persons charged under sections 457 and 460 of the Indian Penal Code are not persons charged with offences which include theft, and consequently they cannot properly be tried with persons charged with receiving stolen property which was stolen in a theft which was committed as part of the transaction involving the other offences.

For the reasons which we have given the joinder of Mst. Sunder, Bishnu, Suraj Prasad and Pyare Lal with Mathuri, Ram Bharose and Sri Kishen in one trial was not permissible and therefore contrary to law.

As we have stated previously, it was further contended by counsel for the accused persons that even if offences under sections 457 and 460 of the Indian Penal Code were offences which included theft, there was a misjoinder in this case, because Mathuri and Ram Bharose were also charged with murder and it was conceded by the Crown that an offence under section 302 of the Indian Penal Code could never be described as an offence which included theft.

In our view, however, if persons can properly be charged and tried together under section 239 of the Criminal Procedure Code, there is nothing to prevent other charges being added against one or more of such persons if the addition of such charges is permissible by the Code.

On behalf of the accused persons reliance was placed on the case of Sultan Ahmad v. Emperor previously cited, where it was expressly held that receivers could not be jointly charged with persons charged with an offence under section 436 and with an offence under section 457 of the Indian Penal Code. As we have stated previously, it was assumed in this case that an offence under section 457 was an offence which included theft. At page 142 Dalip Singh, J., observes: “As regards section 239(e) the learned counsel for the Crown wishes me to interpret that section as if it read ‘Persons accused of offences one of which includes theft, extortion, etc., and persons accused of receiving or retaining, etc., may be charged and tried together.’ I do not see any reason for varying the plain grammatical meaning of the section to this extent. In my opinion, the offences described in sections 457 and 436, with which a person is jointly charged, cannot be tried along with offences under sections 411 and 414 of which other persons are charged, because section 436 does not include theft or extortion, though section 457 does.”

Counsel for the Crown, however, contends that if A and B can properly be tried together under section 239(e) for theft and receiving respectively, other charges not involving theft can be added against A if he could be tried alone in one and the same trial upon such charges as well as the charge of theft.

The case of Niranjan v. Emperor is a clear authority for this proposition. In that case three persons were charged under section 411 with receiving stolen property and one of them was in addition charged under the same section with receiving other stolen properties within twelve months and the three accused were tried together. It was held by Bennet, J., that there was no illegality in the trial as there was nothing in section 539 of the Criminal Procedure Code specifically stating that as regards one or more of the persons accused there should be no application to that person or persons of the previous sections of the Code such as section 534 of the Criminal Procedure Code. In that case the three persons were jointly charged and tried together under section 239(a) of the Criminal Procedure Code and the learned Judge held that there was nothing in that section or in the Criminal Procedure Code which prevented further charges being brought against one of the persons, provided the joinder of such charges was permissible under section 234 of the Criminal Procedure Code.

Another case which strongly supports the view of Bennet, J., is the case of Tota Meah Chaudhuri v. King-Emperor. This case lays down that where several accused persons are tried together for the same offence, it is quite possible to have an alternative charge against one of such persons. At page 1108, Rankin, C.J, states as follows: “The first objection is to the joinder of the charges in the present case. It is said that it was wrong in this case to charge the first accused alternatively under section 155 of the Indian Penal Code. It is not here disputed that if the man had been tried by himself the additional charge under section 155 would have been within section 236 of the Criminal Procedure Code, but it is said that, if these persons were all being tried together, the section which has to be regarded is section 239 and that under section 239 there is no provision made by which accused No. 1, in addition to being charged with rioting and other charges arising out of the riot, could be charged in the alternative under section 155. I cannot see that there is any necessity to read sections 239 and 236 in such a way as to produce that result. In this particular case the first accused has not been convicted under section 155. The question, therefore, is a pure question whether the trial is vitiated by the joinder in the alternative of the charge under section 155, and I must flatly refuse to lay down that where accused persons are being tried together under section 239 it is not possible to have an alternative charge against one of those accused persons. I see no necessity whatever to read this section in that manner. Section 236 deals with the question of what charges a single person may be made to meet and it says that, in certain cases, where it is doubtful which offence he has committed, you may charge him with all and you may charge him also in the alternative. The object of section 239 is not to say what charges a man may be called upon to meet but to say what persons may be charged and tried together. I see no difficulty, at all in that matter.” This case is a clear authority for the proposition that where persons can properly be jointly charged and tried by reason of section 239, other charges permissible by the Code may be added against one or more of such persons.

A contrary view has been expressed in the case of Ram Sahai v. Emperor and in the case of Ram Prasad v. King-Emperor(2). These cases were discussed at length by Bennet, J., in the case of Niranjan v. Emperor(3), and it is unnecessary for us further to consider them. In our judgment the view of Bennet, J., in Niranjan's case, supported as it is by the case of Tota Meah Chaudhuri v. King-Emperor(4), is to be preferred to the view expressed in the earlier Allahabad cases. That being so, there is nothing in our view in the Code of Criminal Procedure to prevent charges being added against the thief or receiver in cases where the thief and the receiver are being jointly tried under the provisions of section 239(e) of the Criminal Procedure Code, provided that the addition of such charges against one or other of them is permitted by other sections of the Code. However, the point does not really arise in this case, because we have held that offences under sections 457 and 460 are not offences which include theft and, therefore, the accused persons could never properly be charged and tried together. We have, however, considered the point at some length in deference to the exhaustive arguments which were addressed to us upon this point.

To sum the matter up, there was no justification for the joinder of Mathuri, Ram Bharose and Sri Kishen on the one hand with the persons accused of receiving stolen property, as not one of the charges brought against Mathuri, Ram Bharose and Sri Kishen involved or included theft.

What is therefore the effect of this misjoinder of persons in this case? It has been urged on behalf of the accused persons that the whole trial was vitiated by such misjoinder and that the convictions cannot, therefore, be sustained and must be quashed. In the past misjoinder of persons or charges has been held to be an illegality which vitiated the trial and which was a good ground for quashing convictions in such trials. Such was the course taken in the cases of Ram Sahai v. Emperor, Ram Prasad v. King-Emperor and Ratan Singh v. Emperor and numerous other cases in this and in other High Courts. In all these cases misjoinder of persons or charges was held to be an illegality vitiating the trial and not a mere irregularity curable under the provisions of section 537 of the Criminal Procedure Code.

Section 537 reads as follows: “Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall he reversed or altered under chapter XXVII or on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code … unless such error, omission, irregularity … has in fact occasioned a failure of justice.” To this section is appended an explanation which reads as follows: “In determining whether any error, omission or irregularity in any proceedings under this Code has occasioned a 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 proceedings.”

It would appear from the record that this contention as to misjoinder of persons was never urged in the sessions court, and, if such only amounts to an error or irregularity in the proceedings, it will be difficult for the accused at this late stage to establish that such has occasioned a failure of justice. Further, upon the facts of this case it is quite impossible for us to hold that the misjoinder has in fact resulted in a failure of justice. The joinder of the receivers with Mathuri, Ram Bharose and Sri Kishen could not possibly prejudice the latters' case, and it was not contended before us by counsel for Mathuri and Ram Bharose that such misjoinder had affected their case in any way. It was, however, urged before us that the case of the receivers had been prejudiced by reason of the fact that they were tried together with the persons charged with murder and offences under sections 457 and 460. It was said that the introduction of the evidence concerning two brutal murders must inevitably have made the case of the receivers appear far more serious than it really was. We are unable to agree with this view and we cannot assume, that a learned Judge of experience would allow his mind to be influenced by the fact that the articles received by the receivers were stolen in circumstances of great brutality. There is nothing upon the record which suggests in the slightest degree that the learned Sessions Judge allowed himself to be prejudiced in any way in dealing with the cases of the receivers by the evidence relating to the murders. In any event, it would be impossible to conduct the case against the receivers without proving that murder was committed during this burglary. To establish the case against the receivers it was necessary not only to prove that they were in possession of certain articles of jewellery but also to rove that such articles had recently been stolen, and the theft could not possibly in this case be proved without the fact being established that two murders were committed at the time of the theft. In fact the joint trial of all these accused persons was probably the most convenient if not a legal way of dealing with the matter. However, it is not necessary for us to consider this aspect of the case because we are not satisfied that the prosecution have established beyond all reasonable doubt the guilt of Mst. Sunder and Bishnu. We shall consider the evidence relating to these two accused persons at a later stage, and having regard to the view which we take it cannot be urged at this stage that they were prejudiced by this misjoinder.

As we have stated previously, it has not been contended before us that the misjoinder occasioned a failure of justice in the cases of Mathuri and Ram Bharose, but, even so, if the misjoinder is an illegality not curable under section 537 of the Criminal Procedure Code the trial is vitiated and their convictions must be set aside and a re-trial ordered. It is, therefore, necessary to consider whether a misjoinder of persons is or is not an error or irregularity in a charge which is curable by reason of section 537.

In the case of Subrahmania Ayyar v. King-Emperor their Lordships of the Privy Council held that where an accused person was wrongly charged with no less than 41 offences committed within the space of two years, such joinder of charges vitiated the trial as it was clearly contrary to section 234(1) of the Criminal Procedure Code, and in their judgment their Lordships remarked as follows: “The remedying of mere irregularities is familiar in most systems of jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Cod comes within the description of error, omission or irregularity.” That case is a clear authority for the proposition that a joinder of a large number of charges against an accused person contrary to section 234(1) is an illegality not curable by section 537 and which vitiates the trial.

In a later case, however, namely Abdul Rahman v. King-Emperor their Lordships of the Privy Council commented upon the earlier case of Subrahmania Ayyar v. King-Emperor, to which we have previously referred, and in discussing the effect of the misjoinder stated that “it was possible that it might have worked actual injustice to the accused”. In short their Lordships in the later case appear to have thought that possibly the reason for holding that the trial of Subrahmania Ayyar was vitiated was not because the misjoinder of charges amounted to something more than an irregularity but because such had in fact occasioned a failure or denial of justice. The matter, however, does not rest there, because the effect of these two cases has been considered by a Full Bench of this Court in the case of Kapoor Chand v. Suraj Prasad. In this case the cases of Subrahmania Ayyar v. King-Emperor and Abdul Rahman v. King-Emperor were discussed at length. Mukerji, A.C.J, who delivered the judgment of the Court, made these observations (at page 315) concerning the effect of the decision in Abdul Rahman v. King-Emperor upon the earlier decision of Subrahmania Ayyar v. King-Emperor: “It may be that their Lordships of the Privy Council, in the later case, wanted to point out that section 537 of the Code of Criminal Procedure could not cure the defect in Subrahmania Ayyar's case because the Code contained the provision that an irregularity, which had worked injustice to the accused, could not be cured. But it is significant that although their Lordships of the Privy Council drew a distinction between an ‘illegality’ and an ‘irregularity’ in the earlier case, which was decided in the year 1901, the legislature did not introduce the word ‘illegality’ in section 537 or anywhere else in the Code, although it was amended after that year. This being the state of the law, we do not think that we should introduce a distinction between ‘illegality’ and ‘irregularity’. The sole criterion given by section 537 is whether the accused person has been prejudiced or not. The object of procedure is to enable the court to do justice, but, if in spite of even a total disregard of the rules of procedure, justice has been done, there would exist no necessity for setting aside the final order which is just and correct, simply because the procedure adopted was wrong.”

There can be no doubt that this case lays down that there is no difference between an illegality and an irregularity in procedural matters, and this at first sight appears to be somewhat startling and far-reaching. In the case of Parsotam Das v. Emperor Kendall, J., doubted whether the Full Bench in the case of Kapoor Chand v. Suraj Prasad really intended to lay down such a far reaching proposition as that stated in Mukerjl, A.C.J's judgment. At page 1066 Kendall, J., remarks: “It is to be noticed, however, that the Full Bench was discussing the interpretation of section 537 of the Criminal Procedure Code, under which an irregularity in procedure is not to occasion an alteration of an order passed by a court, and the Full Bench did not really discuss those passages in the Privy Council decision of 1901 or in the later one to which they refer, namely the case of Abdul Rahman v. King-Emperor, in which it has been held that a serious defect in the mode of conducting a criminal trial cannot be cured.” We are unable to agree with Kendall, J.'s view that the Full Bench were not discussing the effect of the decision in the case of Abdul Rahman v. King-Emperor upon the earlier decision in Subrahmania Ayyar v. King-Emperor. It is clear from the judgment of Mukerji, A.C.J, that it had been contended before the Full Bench that what had occurred in that case amounted to an illegality which could not be cured by section 537, which, it was urged, dealt only with irregularities and not with illegalities. This argument is stated in terms at page 311 and after a statement of the argument a discussion of the two Privy Council cases immediately follows. Following that discussion comes the passage, which we have already quoted, where it is pointed out that no distinction should be drawn between an illegality and an irregularity and that the sole criterion given by section 537 is whether the accused person has or has not been prejudiced. In our judgment this Full Bench case is an authoritative statement of the law and we are bound by it. It defines the scope of section 537 and lays down that whether the defect in procedure amounts to a mere irregularity or to an illegality is immaterial. In the present case the misjoinder of persons is contrary to section 239(e) of the Criminal Procedure Code and, therefore, prohibited by law. It is in our view an illegality and not a mere irregularity, but even so it is yet curable by section 537 if it has not in fact occasioned injustice.

The dictum of Mukerji, A.C.J, previously referred to is not in our view so startling and far-reaching as it would at first sight appear. It is true that he states that if in spite of even a total disregard of the rules of procedure justice has been done, there would exist no necessity for setting aside a final order. However, it is difficult to imagine a case where there had been a total disregard of the rules of procedure and yet justice had been done. A total disregard of the rules of procedure would in almost every case occasion a failure of justice. For example, if a Magistrate refused to record any evidence and yet convicted a person, it would be impossible for a court to hold that such a disregard of the rules of procedure had not occasioned a failure of justice. The refusal of the Magistrate in such a case to record any evidence might be an irregularity within the meaning of section 537, yet a superior court would be bound to set aside the conviction on the ground that such irregularity must inevitably have occasioned a failure of justice.

In our view we are clearly bound by the case of Kapoor Chand v. Suraj Prasad, and as we hold that the misjoinder has not in this case occasioned a failure of justice, the defect or illegality or whatever it may be called is curable by reason of the provisions of section 537.

Having rejected the preliminary points taken by the appellants it is now necessary to consider the evidence adduced in this case and we shall first consider the evidence against the appellants Mathuri and Ram. Bharose who were charged under sections 302 and 457 of the Indian Penal Code. As we have stated previously, Sri Kishen is not before the Court and it is therefore unnecessary to deal with his case.

For the reasons which we have given we are Satisfied that both the appellants Mathuri and Ram Bharose took part in this affair and, therefore, were clearly guilty of an offence under section 457. We are not satisfied that either of them actually committed murder, and that being so, they were in our view rightly acquitted of the charge under section 302 Though clearly guilty of an offence under section 457 they were not convicted under that section but were convicted under section 460 of the Indian Penal Code, though neither of them was charged under that section.

It has been contended before us that a conviction under section 460 cannot be sustained and must be set aside and that at most these appellants can only be convicted of an offence under section 457. It is argued that the offence under section 460 is a more serious offence than the one under section 457 and whereas a conviction for a minor offence is permissible where an accused person is charged with a major offence, a conviction for the latter is never permissible where the charge is only of a minor offence. Counsel for the appellants rely strongly on section 238(1) of the Criminal Procedure Code, but in our view a conviction under section 460 is abundantly justified by reason of sections 236 and 237 of the Criminal Procedure Code.

Section 236 provides that “If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having, committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.” The occurrence which took place on the night of the 17th/18th of May, 1934,. consisted of a series of acts and it could not be said with any certainty before the trial which of several offences the accused were guilty of. That being so, each of the accused could have been charged with each of the offences committed during the occurrence, or they could have been charged with such offences in the alternative. Having regard to the evidence in this case, both Mathuri and Ram Bharose could have been charged under sections 457, 460 and 302 of the Indian Penal Code as well as a number of other sections, such as sections 395 and 396 of the Indian Penal Code. They were not charged, however, under section 460 of the Indian Penal Code, but it is clear that they could have been so charged.

Section 237 provides that “If, in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it.” In other words in a case where it is doubtful which of several offences a person has committed, he may be charged with all of them or with a number of them in the alternative. In such a case he may be convicted if the facts proved show that he is guilty of an offence with which he might have been charged under section 236, though in fact he was not specifically charged with that particular offence. The decision in the case of Begu v. King-Emperor makes this abundantly clear. Viscount Haldane, who delivered the judgment of their Lordships of the Privy Council in that case, stated on page 531 after discussing section 237 of the Criminal Procedure Code: “The illustration makes the meaning of these words quite plain. A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made.” This is an authoritative pronouncement upon sections 536 and 237 of the Criminal Procedure Code, and they precisely cover this case. Both Mathuri and Ram Bharose might well have been charged under section 460 of the Indian Penal Code as well as under sections 302 and 457 of the Indian Penal Code and the facts proved have established an offence under section 460. They can be convicted under that section, although they were not specifically charged with that offence. In our judgment both these appellants were properly convicted under section 460, and there is no ground whatsoever for interfering with their convictions or with the sentences passed upon them. That being so, their appeal against their convictions must be dismissed.

In our judgment the learned Sessions Judge rightly acquitted Mathuri and Ram Bharose of the offence of murder and therefore the Government Appeal is dismissed. As we have stated previously they were, however, rightly convicted under section 460 of the Indian Penal Code and their appeals as we have previously stated are dismissed.