Fletcher, J.:— This is a Rule calling upon the District Magistrate to show cause why the conviction and sentence passed upon the Petitioner should not be set aside.

The Petitioner was charged along with others with having committed an offence punishable under sec. 147 of the Indain Penal Code. He was also charged with having caused hurt to two persons, Khalifa Ahir and Rambilas Lal, and thereby having committed an offence under sec. 323 of the Indain Penal Code. Only one charge was framed against the Petitioner in respect of the hurt caused to these two persons. The Petitioner having been convicted and sentenced on the charges framed against him applied for and obtained the present Rule.

The only question for our decision is, whether the charges of committing hurt against two persons having been charged in one charge renders the trial illegal.

Sec. 233 of the Code of Criminal Procedure provides that for every distinct offence of which any person is accused, there shall be a separate charge. The causing of hurt to two different persons are obviously two distinct offences and there ought to have been in the present case two separate charges framed against the Petitioner of the offences charged under sec. 323 of the Indian Penal Code.

The question we have to decide is whether the failure to frame two separate charges vitiated the trial or whether it was merely an irregularity which is cured by other sections in the Code.

It has been held in a series of cases in this Court that the neglect to observe the provisions of sec. 233 of the Code renders the trial illegal.

I need not set out all the cases laying down this proposition. It will be sufficient to state that they commence with the case of Gul Mahomed v. Cheharu(1) and end with the case of Asgar Ali v. King-Emperor(2). Those cases which are binding on us clearly cover the question which we have to decide.

Unless we come to the conclusion that the matter ought to be referred to a Full Bench, our decision must be in accordance with those authorities.

There is however a later decision of this Court, Musai Singh v. The King-Emperor(3), in which a contrary view was taken. With all due respect to the learned Judges who decided that case, it was not open to them to ignore the previous decisions of the Court and to decide that case without reference to them. The case of Musai Singh v. The King-Emperor does not appear to me on consideration to have been well decided. The learned Judges observe that in the case before them the defect is one of ‘duplicity’ not of misjoinder.”

In England however an indictment is said to be “double” when an accused has been charged with having committed two or more offences in one count of the indictment. This I should have thought was a misjoinder. Further, the learned Judges in quoting the law in India from the Code of Criminal Procedure make what is to my mind a most important omission. In quoting from sec. 537, which is the only section (if any) that an remedy a defect such as we are at present considering, the learned Judges fail to observe that the whole of the section is governed by the words “subject to the provisions hereinbefore contained”. This includes amongst other provisions the provisions contained in sec. 233 and a neglect of the provisions ??? that section is not, I think, ??? 537.

Not only do I therefore consider that we are bound by the decisions of this Court earlier than the decision in the case of Musai Singh v. The King-Emperor, but I approve and follow such decisions. In my opinion the case of Musai Singh v. The King-Emperor was wrongly decided and as ib is contrary to the series of the earlier decisions of the Court, we are not bound by and ought not to follow it.

The present Rule ought therefore, I think, to be made absolute and the Petitioner should be re-tried according to law.

Beachcroft, J.:— The charges against the Petitioner were of rioting and causing hurt. The latter charge which has formed the subject of discussion in this case runs as follows:—“That you on or about the 5th day of July 1914 at Mafitala voluntary caused hurt to Khalifa Ahir and Rambilas Lal and thereby committed an offence punishable under sec. 323 of the Indian Penal Code”. This charge and the charge of rioting are drawn up on a form with the heading “Charges with two heads”

The only ground urged by the Petitioner's vakil is that the charge abovequoted is defective and therefore on the authority of the case of Subramania Iyer v. The King-Emperor (4) the whole trial was bad. The learned vakil also cited five cases decided by this Court and one by the Allahabad High Court to support his contention. It is unfortunate that the Crown has not been represented to argue the case before us, yet in spite of that fact I feel no doubt whatever that the Rule ought to be discharged.

The five cases of this Court quoted by Dr. Dwarka Nath Mitter were the following in order of time: (1) Gul Mahomed Sircar v. Cheharu Mandal—The accused was convicted on one charge of extorting a muchlika and Rs. 25, apparently on different dates. The learned Judges held that the fact of there being only one charge was fatal to the trial on the authority of Subramuniya Iyer's case; (2) Johan Subarna… v. King-Emperor…Opposite Party.(5)—.One charge was framed in respect of two attempts to cheat on different dates. The learned Judges said “there should, have, been two charges. Under the ruling of the Privy Council in Subramania Iyer's case, this would seem to be an illegality which vitiates the trial and cannot be cured by sec. 537”. Then referring to a case cited by the Deputy Legal Remembrancer “this does not relate to a defect under sec. 233, Cr. P.C, which according to the ruling of the Privy Council above referred to vitiates the trial”; (3) Tilakdhari Das v. Emperor(6)—In this case two persons were charged in one charge for misappropriation of three sums of money, collected in accordance with their duty from three persons. Apparently it was suggested that the money had never come into the possession of one of these two persons. It was argued that there was both misjoinder of persons on the authority of Budhai Sheikh v. Tarap Sheikh(7) and of offences in the authority of Johan Subarna… v. King-Emperor…Opposite Party. and Gul Mahomed v. Gheharu. The learned Judges remarked that the cases cited carried the rule in Submmania Iyer's case to an extreme length, but they were not prepared, as the case had not been fully argued, to dissent from the cases cited. They then remarked that the irregularity in procedure—it is not clear whether they referred to misjoinder of persons, or offences or both—had in fact caused a failure of justice and ordered a re-trial, of the accused separately which: suggests that they considered the joinder of persons to be irregular. This case is certainly not an authority in favour of the petitioner. It is to be noticed that the learned Judges did not refer to sec. 222, C.P.C, which might have been an answer to the argument of misjoinder of charges, the charge being of one offence of misappropriation only, though three sums there separately specified; (4) Srish Chandra Mukerjee v. Emperor(8)—The accused was charged with cheating and an allegation of delivery of property on three different dates was made in one charge. Two cases only, those of Johan Subarnu v. King-Emperor and Gal Mahomed v. Gheharu, were cited, and the learned Judges disposed of the case on the authority of those cases, without expressing any opinion on the correctness of the view propounded; (5) Asgar AH Biswas v. King-Emperor—The accused was charged with misappropriating between the 29th May and 4th December 1911 a sum of money made up of two sums collected between those dates. Haringfon, J., said, the charge was bad in view of sec. 233. Coxe, J., said, that as the charge framed was illegal, the conviction could not stand in view of Subramania Iyer's case. The authority of this case is considerably weakened, as the learned Judges do not seem to have referred to sec. 222 of the Code of Criminal Procedure and their decision is directly contrary to the decisions in Sat Narain Tewari… v. The Emperor…Opposite Party.(10). In all three cases, there was a charge of misappropriation of a lump sum and it is immaterial whether that sum is made up of several smaller sums or not.

In only one of these five cases, the second, was the Crown represented.

The case in the Allahabad High Court is that of Emperor v. Fattu Ane Others(11). The accused were charged with committing dacoity and it was alleged that they looted the houses of three, if not four, persons on one night. Stanley, C.J, remarked: Their Lordships of the Privy Council have held in the recent case of Subramania Iyer v. The King-Emperor that the disregard of the express provisions of secs. 233 and 234 of the Code of Criminal Procedure was not a mere irregularity, such as could be remedied by sec. 537, but was altogether illegal.”

It will be noticed that in two of the above six cases the Privy Council is represented as having decided that a defect under sec. 233, Cr. P.C, is fatal to the trial. In my opinion that is too broad a generalization of what their Lordships said. They in effect decided that a disregard of the second part of sec. 233, by joining charges beyond the limits specified in sec. 234, vitiated the trial. A reference to the judgment itself will show that their Lordships made no mention of sec. 233, Cr. P.C The head-note of the report does, it is true, say that one of the counts of the indictment contravened the provisions of secs. 233 and 234, but the judgment itself from beginning to end deals with sec. 234 and with that section alone. The criticisms in the last paragraph of the judgment of the decision of this Court in In the matter of Abdur Rahman(12) have reference to sec. 234 only as in that case there was a joinder of offences not committed within the space of 12 months.

In a passage that is frequently quoted, Lord Halsbury, L.C, who also delivered the judgment in Subramania Iyer's case, says in Quinn v. Leathern(13)—“every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but are governed and qualified by the particular facts of the case in which such expressions are to be found. A case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it.”

Now in those cases in this Court in which the learned Judges have expressed the opinion that a defect under sec. 233 vitiates the trial, they have considered themselves bound by Subramania Iyer's case. With the greatest respect for the learned Judges who took part in those decisions, I venture to say that the decision of the Privy Council is not an authority for the proposition stated.

Though a decision even of the Privy Council is an authority only for what it decides, the general remarks of their Lordships are ordinarily considered to have binding force in this country. But not only is the decision in Subramania Iyer's case not an authority on the result of a disregard of the first part of sec. 233, Cr. P.C, but the “generality of the expressions” used in the judgment does not even bear on the question. Dr. Dwarka Nath Mitter relies especially on the sentence — “Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity”. But this sentence must be read with the one immediately following it which limits its application to the case where charges are tried together which the law expressly says shall not be tried in the same trial. Nor can the words “mode of trial” in that sentence have reference to the formal defect of drawing up one charge instead of two. The drawing up of the charge is of course part of the trial, but the words “mode of trial” have reference to the constitution of the trial, and when their Lordships speak of “disobedience to an express provision as to a mode of trial” they do not refer to a formal defect in the proceedings in a trial which is properly constituted. That the present accused could be tried at one trial for the offence of rioting and two offences of causing hurt is not and cannot be disputed.

If then Subramania Iyer's case is not to be regarded as an authority for the proposition advanced for the Petitioner, is the defect in the charge curable? For an answer to this question the cases cited do not help us, as the learned Judges did not consider the question apart from the case of Subramania Iyer.

The object of sec. 233 is two-fold: in the first place, to give an accused person notice of the charges which he has to meet, in the Second, to see that he is not embarrassed by having to meet charges in no way connected with one another. Where the offences form part of the same transaction the law allows them to be tried together; in such a case the accused is not likely to be Embarrassed or the Court confused. The first part of the section is designed to give the accused notice of the charges against him. The object is that he shall not be convicted of an offence of which he has not been charged. This object is not frustrated, and the accused is not prejudiced if the accusations against him are written in one sentence or on one sheet of paper, instead of in two sentences or on two sheets of paper.

This was in effect the view taken in the case of Maharuddi Malita v. Jadu Nath Mandul(14) in which three charges of theft were included in one formal charge, the persons from whose fields the thefts had been committed being differentiated by the letters (a), (b) and (c). The accused were convicted and separately sentenced for three offences of theft. Even though they were charged with having committed “an offence”, they were convicted of three offences. The learned Judges held that this was an error of form and not of substance, an irregularity and not an illegality. That the pleaders consented to the joint trial of three persons does not affect the case. It does not touch the present question which is as to the misjoinder of charges and not as to the misjoinder of persons, and in any case it is open to question whether consent of pleaders could validate a trial which was illegally constituted.

The learned Judges also distinguished the case from that of Gul Mahomed Sircar v. Cheharu Mandal on the ground that in that case the two offences were distinct and committed at different times. Whether or not this distinction be a sound one, it will also apply to the 2nd and 4th cases which I have referred to above. If the distinction was good in Maharuddi Malita v. Jadu Nath Mandul it is good in the present case.

The mere fact that the letters (a), (b) and (c) were used in Maharuddi v. Jadu Nath does not really distinguish that case from this: here both persons assaulted are named; the irregularity in that case was really greater than the irregularity in this, for, in that case, charged with one offence though there were in fact three offences, they were convicted of three; in the present case, charged with one offence, though there were in fact two, the Petitioner had been convicted only of one offence, though the; facts found amount to two.

The result of this review is that of the five cases of this Court cited for the Petitioner, three have been distinguished in another case on grounds applicable to this and the authority of the other two, as I have already pointed out, is considerably weakened by other considerations.

In the case of Musai Singh v. The Emperor an accused was charged with having cheated three different persons, and caused them to deliver to him three sums of money, three distinct offences of cheating, but there was only one charge under sec. 420, I.P.C, covering the three different acts. It was held that the charge was defective for duplicity and not misjoinder and the case of Subramania Iyer, now quoted against such a charge, was referred to by the learned Judges as not affecting such a case. The case of Srish Chandra Mukerjee v. Emperor was relied on in support of the rule in that case, but the rule was discharged, the defect being treated merely as an irregularity. The learned Judges relied on secs. 535 and 537, Cr. P.C It may be interesting to note that the learned vakil who now appears for the Petitioner, appeared in that case to support the exactly opposite contention. He has not attempted to distinguish that case from this.

If the view be correct that no departure from the strict letter of the law can be treated as a mere irregularity, but is an illegality, it is difficult to see what kind of case is provided for by the phrase, “irregularity in the charge” in sec. 537, for unless there has been a departure of some kind from the strict letter of the law, it is clear that there has been no irregularity. Dr. Dwarka Nath Mitter suggested two instances of what, would be merely an irregularity, (1) where the name of the accused or of the person against whom the offence was committed is omitted from of wrongly given in the charge, (2) where the common object is not specified in a charge of rioting.

Obviously the first is not an instance of irregularity—it is either an omission or an error, both of which are also provided for by sec. 537. The second is also an omission, and if the common object is one of the particulars required by sec. 222 to be given; in the charge, then sec. 225 would cure the, defect, and recourse to sec. 537 would be unnecessary. That section then must apply to some other state of things.

What is the effect of the words “subject to the provisions hereinbefore contained” in sec. 537? I do not think, it can possibly: be taken to be that the section is to have no application if there has been any departure from any of the previous sections of the Code. Such an interpretation would render the words “error, omission or irregularity in other proceedings” absolutely nugatory. The Code is exhaustive as to procedure. I think, the opening words of 5 the section must be read as having reference to secs. 529 to 536. The Chapter in which these sections are included is headed “Of Irregular Proceedings”, and secs. 529; to 536 deal directly with the effect of various irregularities, including some cases of want of jurisdiction. In some eases, the irregularity is fatal, in others not. Then follows sec. 537, a general saving section, which is, however, limited by the foregoing sections in the same Chapter. In one of the sections before sec. 537, viz., sec. 535, is a provision that the absence of a charge shall not invalidate proceedings, unless it has in fact occasioned a failure of justice. So that in the present case if no charge at all under sec. 323 had been framed, a conviction under that section, or two convictions under that section, would not have been invalid unless there had been an actual failure of justice. In view of that section, apart from sec. 537, it is difficult to see how the Petitioner's contention that the trial is had because there was one charge instead of two, can be supported.

I consider, it is impossible to define accurately what is meant by “irregularity” in sec. 537 and undesirable to attempt such a definition. The Judicial Committee say, “The illustration of the section itself sufficiently shows what was meant”. The illustration shows that where a signature by a Magistrate is required, a signature by initials is purely an irregularity. So that where a thing is directed to be done and that thing is in effect done, but in the wrong way, the error amounts only to an irregularity and not an illegality. Applying this test, what does sec. 233 in effect require and what has in effect been done? The section requires that a person is to be informed by a charge of every offence in respect of which he is to be tried. Treating the charge as one of two offences of causing hurt, he has in effect been told that he is to be tried for causing hurt to two persons named. The necessary information has been given to him, but in the wrong way it has been given in one sentence, instead of in two.

I have discussed the case up to this point as if the accused had really been charged with two offences, in one charge, that being the footing on which it was argued by Dr. Dwarka Nath Mitter, and all the cases cited on behalf of the Petitioner to which I have referred, appear to have been treated on that footing. But in the present case though acts amounting to two offences of causing hurt are alleged, the charge is only of one offence, as if the Magistrate had considered that the hurt paused to two persons amounted only to one offence. Not only is this indicated say the wording of the charge itself, but support is lent to this view by the fact that the charges are drawn on a form headed “Charge with two heads”: one is the rioting charge, the other the charge of causing hurt. The conviction is also on that footing. The cases of Gul Mahomed v. Gheharu, Johan Subarna… v. King-Emperor…Opposite Party. and Srish Chandra v. Emperor could not have been treated on that footing, as in those cases the acts alleged were committed on different occasions, and not as here at the same time.

Now it is somewhat surprising to me that an accused should be allowed to say “I have been charged with and convicted of one offence, but as I ought to have been charged with and convicted of two, the whole proceedings are bad”. Unless the law on the subject is very clear, I should be unwilling to attribute, to the legislature the intention of allowing him to say any such thing.

If the charge is treated as one of one offence only, the Magistrate has merely told him that causing hurt to two persons amounts to one offence, whereas he might have charged, convicted and sentenced him for two. In such a case the provisions of sec. 233 have not been contravened, for the accused is in effect accused of one offence only.

Whether the charge is treated as one of two offences or one, the result is the same. In one case I prefer the view taken in Maharuddi Malita v. Jadu Nath Mandul that the error is one of form and not of substance, and that taken in Musai Singh v. The King-Emperor to that taken in the cases cited on behalf of the Petitioner. In the other, the provisions of sec. 233 have not been contravened.

To recapitulate, I am of opinion (1) that the case of Subramania Iyer is not ab authority for the proposition that failure to observe the first part of sec. 233 is fatal to the trial, (2) that if we are merely to follow authority we must follow Maharuddi Malita v. Jadu Nath Mandul, in which the learned Judges made it a distinguishing feature that the offences were committed on the same occasion—a distinction which applied to the present case, and in view of that distinction the cases cited by the Petitioner do not apply, (3) that if Maharuddi Malita v. Jadu Nath Mandul is not distinguishable from the other cases, it is a more correct interpretation of sec. 537 than the other cases, which do not discuss sec. 537(4) that if Petitioner had been convicted of one or two offences under sec. 323 without any charge at all, the defect would not in view of sec. 535 have been necessarily fatal, much less can it be where in fact there has been a charge under sec. 323(5) that if the case be considered from the point of view that the Petitioner has been accused of only one offence, though the facts alleged amount to two offences, there has been no contravention of sec. 233.

In dealing with the case, I have not referred to English cases, as reliance on cases decided under the Criminal Law of England is liable to mislead, though such cases may sometimes be useful as illustrating principles. Even in that stronghold of technicality the joining, of more charges than one in one count has been held not to be a fatal defect. In the case of Reg v. Giddins(15) the prisoners were charged in one count of assaulting two persons and of stealing from those persons. Objection was taken before trial. Tindal, C.J, decided that Counsel for the prosecution was not to be put to elect on the ground that “it was all one act and one transaction.” It is noticeable that this in effect was the ground on which the learned Judges who decided Maharuddi Malita v. Jadu Nath Mandul distinguished it from the case of Gul Mahomed Sircar v. Cheharu Mandal.

In a recent case, the case of James Andrew Thompson(16), the Court of Criminal Appeal refused to interfere in the case of a conviction, where there were two counts in each of which a number of offences were alleged. The indictment was bad, but it was held that the Appellant had; not in fact been prejudiced, as in the deposition and at the trial offences were proved; on specific dates. The decision proceeded on one of the sections of the Criminal Appeal Act which in effect provides what is provided by sec. 537, Cr. P.C

In conclusion, I may mention that it would be difficult to find a case where at mere technicality; if upheld, would lead to 5 more absurd results than in this case. The Petitioner has been sentenced to six months' imprisonment under sec. 147 and to two months' under sec. 323. The sentences are to run concurrently, yet because; he has been charged on only one charge instead of two under sec. 323, the trial in respect to the charge of rioting also is to be held invalid though it would have been unaffected if there had been no charge and no conviction at all under sec. 323.

I think the Rule should be discharged and the Petitioner committed to jail to serve out the rest of his sentence.

As we have differed in opinion in this, according to the provisions of the law, let the case be placed before the learned Chief Justice for the purpose of its being laid before a third Judge.

Sharfuddin, J.—This is a reference made to me under sec. 439, read with sec. 429 of the Code of Criminal Procedure, as Eletcher and Beachcroft, JJ., were divided in opinion as to the interpretation of the first portion of sec. 233 of the Code.

The facts so far, as are necessary for the purposes of the present reference, are these:—

There was a rioting in which hurt was caused by one Ram Subheg Singh to two men named Khalifa Ahir and Rambilas Lal. The Petitioner was charged with rioting and with hurt caused by him to the abovementioned two men. The latter charge is under sec. 323, I.P.C

The second head of the charge is in the following terms:—

“That you, Ram Subheg Singh, on or about the 5th day of July 1914 at Mafitala, appertaining to Mauza Bangra, voluntarily caused hurt to Khalifa Ahir and Rambilas Lal, and thereby committed an offence under sec. 323 of the Indian Penal Code, etc., etc”.

Ram Subheg Singh, the Petitioner, having been found guilty of both the charges, was convicted and sentenced. He moved this Court and obtained a Rule in the following terms:—

“Let the record be sent for and a Rule issue calling on the District Magistrate to show cause why the conviction and sentence passed upon the accused should not be set aside or why such other orders should not be passed as to the Court may seem fit and proper.”

The above is an open Rule, but the present reference relates to the first ground taken in the application for revision, and that ground is that the joinder in one charge of two distinct offences of causing hurt to two distinct individuals was an illegality which was fatal to the whole trial.

The difference between the two learned Judges of the Bench that heard the rule is as to whether the first portion of sec. 233, Cr. P.C, is so imperative as to render the whole trial null and void for the reason that the direction enjoined therein has been disobeyed, and also as to whether the omission complained of is curable by sec. 537 of the Code.

See. 233 of the Code enacts—“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 mentionel in secs. 234, 235, 236 and 239.”

For the purposes of the present reference, I am concerned with that portion of the section which I have italicised and which refers only to the framing of the charge.

In the present case, the accused was charged in one count with having caused hurt to two men. On behalf of the Petitioner it has been contended that a duplication of two charges in one count was not a mere irregularity which could be cured by sec. 537 of the Code; and that the omission was an illegality in the mode of trial and in disobedience of an express direction of law, and that by reason of this disobedience the whole trial vitiates.

Sec. 537 enacts—“subject to the provision hereinbefore contained, no finding, sentence, or order passed by a Court of competent jurisdiction shall be reversed or altered under Chap. XXVII or on appeal or revision on account:—

(a) of any error, omission, or irregularity in the competent summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial, or in any inquiry or other proceedings under this Code, or

(b) of the want of or any irregularity in any sanction required by sec. 195, or any irregularity in proceedings taken under sec. 476, or

(c) of the omission to revise any list of jurors or assessors in accordance with sec. 324, or

(d) of any misdirection in any charge to a jury unless such error, omission, irregularity, want or misdirection has in fact occasioned a failure of justice.”

Explanation—In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could or should have been raised at an earlier stage in the proceedings.

For the purposes of the present reference, I am concerned with cls. (a), (b), (d) and the explanation. The above section is prefixed by the qualifying words “subject to the provisions hereinbefore contained.” A question arises as to whether these qualifying words refer to the part of the Code which precedes sec. 537 or they refer only to the Chapter where this section finds, a place. The question has been raised, though not expressly decided, whether the provisions referred to are the provisions of the entire Code preceding this section or only the provisions of Chap. XLV where this section occurs. The former view was adopted in the case of Raj Chunder Mozumdar v. Gour Ghunder Mozumdar(17) and in the case of Nilratan Sen v. Jogesh Chandra Bhatiacharji(18), and the latter view was put forward by the referring Judges in the case of Abdul Rahman and Keramat, but the Full Bench did not decide the question.

To my mind, it is clear from the wordings of cl. (b) of sec. 537 and the explanation attached to it, that the qualifying words “subject to the provisions, hereinbefore contained” do not refer to the entire Code that precedes that section, because if those qualifying words referred to all the sections of the Code preceding sec. 537, the cl. (b) of the section would become meaningless or inoperative. Take the case of giving false evidence in a Court. Under sec. 195, cl. (b), of the Code, no Court “shall take cognizance except with the previous sanction or on the complaint of the Court where the offence was committed or some other Court to which such Court is subordinate.” If the qualifying words in sec. 537 were to be interpreted in the manner suggested by the learned vakil for the Petitioner, cl. (b) of sec. 537 would conflict with that interpretation. If the qualifying words refer to the entire Code preceding the section, it would mean that trial of an accused for giving false evidence without a sanction previously obtained would be altogether null and void and sec. 537 would not be able to cure the defect; but cl. (b) distinctly provides that in such a case, sec. 537 can cure the defect if there has not been a failure of justice.

If the words “subject to the provisions hereinbefore contained” referred to all the preceding sections of the Code, then an omission to sign a warrant cannot be cured by this section. Sec. 75 of the Code requires a warrant of arrest to be in writing and to be signed by the presiding officer. The words used in that section are—“shall be in writing, signed by the presiding officer.” Cl. (a) of sec. 537 provides that an omission in a warrant is curable by that section under certain circumstances. Thera is only one illustration attached to this section, which is this—“A Magistrate being required by law to sign a document, signs it by initials only; this is purely an irregularity and does not affect the validity of the proceeding.”

Sec. 68 requires certain formalities with regard to summons and the word used is “shall”, but having regard to the new and the only illustration to sec. 537 of the Code, it is purely an irregularity and cannot therefore affect the validity of the proceeding.

In the present case, the objection that the charge has not been framed in accordance with the provision of sec. 233 of the Code, was never taken before the blatter came to this Court. In determining whether the omission complained of has occasioned a failure of justice, I must have regard to the fact whether the objection could or should have been raised at an earlier stage in the present proceeding.

If by the duplication of the charges the Petitioner was embarrassed, he should have objected to the form of the charge when it was read to him.

On behalf of the Petitioner, reliance has been placed on the case of Subramania Iyer v. The King-Emperor and some other cases that followed that Privy Council case. The later cases I propose to discuss later on. At present, I think it necessary to examine, the judgment of their Lordships of the Privy Council and find out from it whether their Lordships held therein that a disobedience to the direction contained in the first portion of sec. 233 is an illegality, not curable by sec. 537.

The head-notes that prefixed the judgment of their Lordships are incorrect. Those head-notes are to the following effect:—

“The Appellant was tried at the Criminal Sessions of the High Court and convicted, on an indictment the first portion of which contravened the provisions of secs. 233 and 234 of the Code of Criminal Procedure (which provide that every separate offence shall be charged and tried separately except that three offences of the same kind may be tried together in one charge, if committed within the period of one year), and did not fall within the provisions of sec. 235, sub-sec. (1) (which provides that if in one series of act so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence). On a case certified under Article 25, Letters Patent, and heard by the Full Court, it was held by the majority of the Court, that the union of the first count with the others made the whole indictment bad for misjoinder, but that it was open to them to strike out the first count rejecting the evidence with regard to it, and deal with the evidence as to the remaining counts of the indictment. This was done with the result that the conviction was upheld on one count only, the sentence being reduced. Held by the Judicial Committee that the disregard of an express provision of law as to the mode of trial was not a mere irregularity such as could be remedied by sec. 537, Cr. P.C; such a phrase as ‘irregularity’ is not appropriate to the illegality of trying an accused person for many different offences at the same time and those offences being spread over a longer period than by law could have been joined together in one indictment; nor could such an illegal procedure be amended by arranging afterwards what might or might not have been properly submitted to the jury. To allow this, would leave to the Court the function of the jury, and the accused would never have been really tried at all upon the charge afterwards arranged by the Court. The trial having been conducted in a manner prohibited by law was held to be altogether illegal and the conviction was set aside.”

I have reproduced above the whole of the head-notes, as I consider it of serious importance. I find on comparing them with the judgment that these head-notes contain more than what was held by their Lordships of the Privy Council, and in order to do this, it is, I think, necessary to mention here in some detail the facts of that case. In that case, the Appellant was tried on an indictment in which he was charged with no less than forty-one acts, those acts extending over a period of two years. Their Lordships held this to be in contravention of the provisions of sec. 234 of the Code (which provides that a person may only be tried for not more than three offences of the same kind if committed within a period of twelve months).

Their Lordships' views as to the scope of sec. 537 of the Code, as I make out, are these:—

When a person was tried for 41 offences in direct contravention of the provisions of the sec. 234, their Lordships observed that the mischief sought to be avoided by the section having been committed, “the effect of the multitude of the charges before the jury has not been averted by dissecting the verdict afterwards and appropriating the finding of guilty only to such parts of the written accusation as ought to have been submitted to the jury. It would in the first place leave to the Court the function of the jury, and the accused would never have really been tried at all upon the charge arranged afterwards by the Court.” Their Lordships did not regard this as curable by sec. 537. The following remarks by their Lordships manifestly indicate that the illegality referred to was an utter disobedience of the law as contained in sec. 234 of the Code. Those remarks are:—“Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity. Such a phrase as an ‘irregularity’ is not appropriate to the illegality of trying an accused person for many different offences at the same time, and those offences being spread over a long period than by law could have been joined together in one indictment.”

The case before the Privy Council was not that any provision of the sec. 233 was contravened. The only question before their Lordships was whether the mode of trial in which one indictment contained 41 acts, spread over a period longer than 12 months, was or was not illegal by reason of the provisions of the sec. 234 of the Code.

For the above reasons, I am of opinion that the head-notes, prefixed by the reporter, are misleading in so far as reference is made therein to sec. 233 of the Code.

During the course of arguments a number of authorities has been referred to in support of the contention that a disobedience of the first portion of sec. 233, Cr. P.C, is an illegality which vitiates the whole trial and not a mere irregularity curable by sec. 537 of the Code.

I propose now to discuss the other authorities referred to during the course of argument in order to point out, assuming the correctness of the views expressed therein, that the facts of these cases were different from the facts of the present case:

(1) In the case of Anath Nath Dey… v. The Emperor….(19) the charges were:—

First.—“That you on or about the 15th or 16th day of January 1905, at Khayara Bari, committed extortion of a muchlika and of Rs. 25 respectively from Chelam Mandal and thereby committed an offence under sec. 384, I.P.C

Second.—That you, or or about the 15th of January 1905 at Khayara Bari assaulted Chelam Mandal and thereby committed an offence under sec. 352, I.P.C”

In the above case, the accused was convicted under secs. 384 and 352, I.P.C The convicted person obtained a Rule from this Court. When the Rule came on for hearing, Crown was unrepresented. This Court held that assuming that these charges arose out of one and the same transaction, and that the claim for Rs. 25 did not constitute extortion, a neglect to observe sec. 233, Cr. P.C, must be pronounced to be fatal to the case according to the ruling in Subramania Iyer v. The King-Emperor, because under that section there should have been a separate charge for the distinct offences.

Apparently no doubt the above authority is in support of the contention that to charge the accused in the present case for two acts of hurt caused by him on two different persons in one indictment was in direct contravention of the provisions of sec. 233, Cr. P.C In this reported case, it must be remembered that the charges, as framed, referred to acts of the accused on two different dates; it is possible, therefore, the accused may have been embarrassed in meeting with such a charge. In the present case, however, there was one rioting in the course of which the accused is said to have caused hurt to two men simultaneously or almost simultaneously and during the whole trial he never objected to the alleged misjoinder of the charges; on the contrary he by examining witnesses for the defence indicated that he was not embarrassed at all.

What the privy council has prohibited is any contravention of any mode of trial laid down expressly by the law. To charge an accused person with two acts committed in one and the same transaction and committed simultaneously or almost simultaneously is a matter which was not before their Lordships of the Privy Council. The only passage in their Lordships' judgment which may be construed to have any reference to sec. 238 of the Code is this—“the policy of such a provision (joinder of charges of more than three offences committed within a year) is manifest and the necessity of a system of written accusation specifying a definite criminal offence is of the essence of Criminal Procedure. At the time, what was present before their Lordships was that 41 acts committed within the space of more than 12 months were included in one charge. I am of opinion that the abovequoted passage is not in reference to sec. 233, but is in reference to sec. 234 of the Code.

(2) Another case cited on behalf of the Petitioner is the case of Tilak Dhari Das v. Emperor. In this case the Crown was unrepresented.

The facts of this case were:—

The Petitioners were in the employ of the Durbhanga Raj, Tilak Dhari being the patwari, Chaman Missir a jeth raiyat. It was the duty of the patwari to collect rents from the raiyats and to account for their collections. They collected three sums of money, namely, Rs. 2-12 from a tenant by the name of Kirty Jha and Rs. 6-4 and Rs. 1-4 from another tenant called Bhatoo Thakur, all the 3 items being collected on one and the same date, the 30th Bhadra 1312. The Sub-divisional Magistrate of Madhiihani convicted the Petitioners under sec. 408 I.P.C, in respect of all the 3 items and sentenced them to certain terms of ???. The charge as framed was as follows:

“That you, on or about the 30th Bhadra 1312 F. at Pariharpur, being in service of the Maharaja of Durbhanga and entrusted with the duty of collection of rents from his raiyats of Pariharpur, and being in charge of the collection of monies, dishonestly misappropriated three sums of collection money, viz.—(1) Rs. 2-12, realised from Kirty Jha; (2) Rs. 6-4 from Bhatoo Thakur and Re. 1-4 from Bhatoo Thakur on 30th Bhadra 1312, as shown in 3 receipts and thereby committed an offence punishable under sec. 408, I.P.C”

The observations made by Caspersz, J., sitting with Chitty, J., are important as they distinguish that case from the present case. Their observations are:—

“The authorities we have cited doubtless carry the rule laid down by their Lordships of the Privy Council in the case of Subramania Iyer to an extreme length. But we are not prepared as at present advised, and in a case which has not been fully argued (Crown was unrepresented) to dissent from the cases to which our attention was called. We are of opinion that the irregularity in the procedure of the Sub-divisional Magistrate is not an irregularity such as can be cured by the provisions of sec. 536, Cr. P.C We rather think that the irregularity has in fact occasioned a failure of justice and that the Petitioner should be retried on charges properly framed. There should be separate charge for each distinct offence as provided by sec. 233, Cr. P.C The two Petitioners, being accused of different offences committed in different transactions relating to different raiyats, should be tried separately.”

From the above remarks, it is clear that the omission to frame separate charges in that case was treated as an irregularity and not as an illegality. Separate trial and distinct charges were ordered, but not in consequence of an illegality, but in consequence of an irregularity which had occasioned a failure of justice.

(3) The third case cited was the case of Budhai Sheikh v. Tarap Sheikh. The facts of this case were these:—

Certain amount of linseeds was looted on the 22nd February and certain tobacco on the 23rd February by an unlawful assembly consisting of the same persons of whom the Petitioner was the leader. It was held that the events of the two different dates were not part of the same tranr saction and the trial was had under sec. 239, Cr. P.C, and sec. 234 of the Code by its term referred to the case of a single accused, and is not applicable where several persons are jointly tried under sec. 239 of the Code.

It is important to note that the facts discussed in this reported case do not disclose that the provisions of the sec. 233 had been contravened.

(4) The fourth case cited is the case of Srish Chandra v. Emperor. The charge in this case referred to was of three acts of cheating, i.e, in July, in August, and in October or in November. This Court held that the charge was bad. Here also there were three different transactions and on three different dates. From the report it appears that this Court looked into the evidence on the record of that case as I find in the judgment of that case the following passage:—

“The only question is, whether we should send back the case for retrial. We think, in the circumstances, it would be highly unprofitable to do so and specially having regard to the evidence brought to our notice and to the statements elicited from Girish Chandra Ghose in re-examination. The conviction for the above reason was set aside.”

It appears from this reported judgment, the learned Judges had relied on the case of Johan Subarna… v. King-Emperor…Opposite Party..

(5) The fifth case cited was the case of Asgar Ali Biswas v. King-Emperor. The charge in this case was to the following effect:—

“That you between the 15th Jyaistha 1318 B.S (29th May 1911) and the 18th Agrahayan 1318 B.S (4th December 1911) at Ramna Ethernagar being entrusted with the collection made on account of chaukidari tax, in your capacity of a public servant as a collecting panchayat of Union VI of the Thana Dumkul, dishonestly misappropriated a total sum of ten annas and six pies (10 as. 6 p.), to wit, a sum of four annas six pies collected from Atal Mistri between the 15th Jyaistha 1318 (29th May 1911) and the 4th Bhadra 1318 (1st August 1911) and a sum of six annas collected from Rajni Nath between the 20th Asarh 1318 (5th May 1911) and the 18th Agrahayan 1318 (4th December 1911) and thereby committed an offence under sec. 409, I.P.C”

It was held that a single charge relating to several distinct offences was illegal under sec. 233, Cr. P.C—there should have been a separate head of charge for each of such offences. The case of Subramania Iyer was relied upon.

I consider, however, the charge as framed was perfectly correct and in strict conformity of the provisions laid down in sec. 222, cl. (2), Cr. P.C, which enacts that “when the accused is charged with criminal breach of trust or misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed without specifying particular items and exact dates and the charge so framed shall be deemed to be a charge of one offence within the meaning of sec. 284, provided that the time included between the first and the last of such dates shall not exceed one year.”

There are other cases also in which it was held that a duplicity in the charge vitiates the trial and those cases appear to have followed the case of Subramania Iyer, as reported in the head-notes. I have already pointed out that this Privy Council authority has no reference to sec. 233 of the Code.

Now I desire to discuss the question of duplication. There is an authority of this Court, namely, the case of Musai Singh v. The King-Emperor in which the facts were similar to the facts of the present case and it was held that this was a mere duplicity which had not occasioned any failure of justice. The learned Judges who decided that case refused to interfere. The learned vakil for the Petitioner admitted that he could not distinguish the facts of this reported case from the facts of the present case.

There is no doubt that according to the general principle a duplicity of the charge is not allowed. The indictment must not be doubled, that is to say, no one count of the indictment should charge the accused with having committed two or more offences, for instance, with having committed murder and robbery or the like. But where the offence charged, whether felony and misdemeanour, is one single act it may be made the subject of a single count. So the indictment may charge the prisoner in the same count with felonious acts with respect to several persons, as in robbery with having assaulted A and B and stolen from A one shilling and from B two shillings, if it was all in one transaction (see Archbold's Criminal Pleadings, 24th Edition, p. 75).

Sec. 233 of the Code contains the general law, and the reason of it is that the mind of the Court might not be prejudiced against the prisoner, if he were tried in one trial upon different charges resting upon different evidence. It might be difficult for the Court trying him on one of the charges not to be unfairly influenced by the evidence against him on the other charges. A charge is a first notice, to the prisoner, of the matter whereof he is accused, and it must convey to him, with sufficient clearness and certainty that which the prosecution intended to prove against him and of which he will have to clear himself.

In cases similar to the present case the Court has to see whether the accused was bewildered and embarrassed by the duplicity of the charge.

In the case of James Andrew Thompson his Lordship the Chief Justice dismissed the appeal remarking “that even assuming the objection raised after plea to the defect in the form of indictment was not too late, no substantial miscarriage of justice has accrued and that we are therefore bound to give effect to the proviso in sec. 4, sub-sec. (1), of the Criminal Appeal Act, 1907, which is as follows:—‘Provided that the Court may, notwithstanding that they are of opinion that the point raised in appeal might be decided in favour of the Appellant, dismiss it, if they consider that no substantial miscarriage of justice has occurred.’” This provision appears to be similar to that laid down in sec. 537 of the Code.

Sec. 233, as already observed, provides two things, first, for separate charge for each distinct offence, second, for separate trial except in four cases mentioned. What their Lordships of the Privy Council have prohibited is if law expressly provides a particular mode of trial, a disobedience of that law vitiates the whole trial. I doubt if the framing of charges is a mode of trial; but joint trial of charges as to distinct offences would be a mode of trial and if an accused is tried jointly on several charge not coming under secs. 234, 235, 236 and 239, that trial would be null and void.

Although illustrations have no force of law they go a great way to explain the intention of the legislature. There is only on illustration attached to sec. 233 of the God which is this:—“A is accused of a theft on one occasion, and of causing grievous hurt on another occasion. A must be separately charged and separately tried for the theft and causing grievous hurt.” If the intention of the legislature had been that separate charge should be framed even in a case where more than one distinct offence has been committed in the same transaction (as in the present case), on would expect an illustration to that effect.

The words “every distinct offence” in sec. 233 of the Code have some meaning. I understand, when two offences have been committed and each of these two offences; has no connection with each other, they are distinct offences. The section does not say “for every offence” but “for every distinct offence.” The illustration quoted above indicates the meaning of “distinct offence.” In the illustration, the two offences were committed on two different occasions, one was theft and the other was grievous hurt.

The decision of the question involved in the present reference depends on whether the omission to frame two charges instead of one against the accused with respect to hurt, caused by him to two individuals is or is not curable by sec. 537 of the Code as a mere irregularity which has caused no failure of justice. I have already shown that the qualifying expression at the beginning of sec. 537 refers only to Chap. XLV and that omission in a charge, warrant or summons is not an illegality but is only an irregularity.

“An author must be supposed to be consistent with himself, and therefore, if in one place he had expressed his mind clearly, it ought to be presumed that he is still of the same mind in another place, unless it clearly appears that he has changed it. In this respect, the work of the legislature is treated in the same maimer as that of any other author; and the language of every enactment must be construed, as far as possible, as to be consistent with every other which it does not in express term modify or repeal.” (See Maxwell's Interpretation of Statutes, 5th Ed., p. 253.)

“In determining either what is the general object of the legislature or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most agreeable to convenience, reason, justice and legal principle should, in all cases open to doubt, be presumed to be the true one.” (Maxwell's Interpretation of Statutes, p. 309.)

For the above reasons, I am of opinion that the omission complained of is but an irregularity. The objection taken in this Court could and should have been taken at an earlier stage of the proceeding.

The accused was convicted for rioting and hurt and was sentenced to undergo rigorous imprisonment for six months under sec. 147, and two months under sec. 323, I.P.C and both the sentences were made to run concurrently. He was further ordered under sec. 106, Cr. P.C, to execute a bond in Rs. 500 with a surety in like amount to keep peace for a year and in default to undergo simple imprisonment for that period.

I have now to consider as to whether there has been any failure of justice. Ram Subheg, the Petitioner, was charged in one count for having caused hurt, in one rioting, to two men, namely, Rambilas and Khalifa Ahir. The lower Appellate Court's finding is this: “also the individual charge against Ram Subheg of voluntarily causing hurt to Khalifa has been proved, but not of the individual charge for Voluntarily causing hurt to Rambilas, for apparently Rambilas had no marks of injury.” Prom the judgment of the lower Appellate Court, it does not appear what nature of hurt was caused by Ram Subheg to Khalifa.

Referring to the judgment of the trying Court, I find that Court saying—“P.W 11 proves a number of injuries he found on the person of Khalifa, one being a simple fracture of the left ring-finger and the other a compound fracture near the middle part of ulna and radius bones.” This witness is a Sub-Assistant Surgeon. It does not, therefore, appear from the judgment of either Court what was the nature of the injury caused by the Petitioner. The injury caused by him must have been a simple hurt on Khalifa as he was charged under sec. 323, I.P.C I have been told, that the Petitioner has already served 19 days in jail, and there can be no doubt that he had to spend large amount of money in defending himself in two Courts below, and in this Court. In the above circumstances, I reduce his sentence of six months to the portion already served. The order under sec. 106, Cr. P.C, will stand. He is discharged from the bail-bond.