Piggott and Walsh, JJ.
1. In this case six men were placed on their trial before a Magistrate of the first class at Benares, the allegations against them being that they had been jointly concerned in carrying on a systematic swindle in the course of which they had committed sundry offences punishable under Section 420 of the Indian Penal Code. Three of these offences committed in the course of a single year (as a matter of fact in the course of a much narrower interval) were selected, and the prosecution was limited to these. The Joint Magistrate framed three charges each against the entire body of accused, and he proceeded to try all of them at one and the same trial in respect of all these offences, found all the accused guilty, and passed what he considered appropriate sentences. Four of the persons convicted appealed to the Sessions Judge, who has held the trial in the Magistrate's court to be bad in law. He has accordingly ordered a re-trial of the whole body of accused separately on each of the three charges, and he has done this without entering into the merits of the case at all and without recording, or apparently forming, any opinion that the accused had been prejudiced, or that the interests of justice had suffered by the course adopted in the Magistrate's Court. On the question of law involved we have expressed our opinion in a case which has just come before us in which the question as to the operation of Section 234 of the Code of Criminal Procedure, was raised in a singularly crude and simple form Cr. R. No. 195 of 1916 (Supra). In the present case it is suggested that the question is complicated by the fact that six persons in all were involved in each of the three charges. The provisions of Section 233 and the following sections of the Criminal Procedure Code require to be considered together. They occur in a sub-division of the Code headed 'joinder of charges.' The general principle that there shall be a separate charge and a separate trial for every distinct offence of which any person is accused is first laid down in Section 233 of the Code. Then follow a number of sections specifying possible exceptions. In these sections, where a court is empowered to try offences jointly or accused persons jointly the word 'may' is used in each case, and not the word 'shall' as used in Section 233, where the general principle is laid down. These are therefore empowering sections, which require to be used with due discretion and in suitable cases. In the present case the prosecution set out to prove that the six accused persons, acting together, had committed each of the three offences specified in the several charges. On the wording of the section there was nothing illegal in the framing of the three joint charges against all the accused, or in the trial of these three charges at one and the same trial. If, the learned Sessions Judge, on examining the record, comes to the conclusion that the accused persons, or any of them, were prejudiced, or that the interests of justice have suffered by the procedure adopted in the Magistrate's Court, It will still be open to him to order such new trial or trials as he may consider that the interests of justice require. We think he was wrong in holding himself bound by the view he took of certain older decisions of this Court to quash the whole of the convictions and direct the re-trial of all the accused on all the charges, on the one ground taken by him, namely, that the trial as held in the Magistrate's Court was absolutely illegal. We therefore set aside the order passed by the Sessions Judge in this matter and direct him to re-admit the appeals of Bechan Pande, Sat Narain Pande, Anrudh Prasad, and Ram Shankar on to his file of pending appeals and dispose of the same according to law with regard to the remarks that have been made above.