Rachhpal Singh, J.
1. On the complaint of one Sheo Narain, the five applicants were tried jointly. The case against four of them was that they had entered the house of the complainant on the evening of 29th June 1932, had dragged him out and had beaten him and had then wrongfully confined him for the whole night in the house of one of them. They were charged with the commission of offences under Sections 342, 452 and 323, Penal Code. The charge against Haddan, the fifth applicant, was that on the morning of 30th June 1932, he had beaten the complainant when the latter was taken to his house by the first four applicants. All the five applicants were found guilty and convicted by the trial Court. There was an appeal against the decision of the trial Court. The appellate Court maintained the convictions of the five applicants. Thereupon, the five applicants filed a revision application before the Sessions Judge. The learned Sessions Judge was of opinion that joint trial of applicant 5 along with applicants 1 to 4 was illegal. He has therefore referred the case to this Court with a recommendation that the convictions of the five applicants should be set aside and there should be fresh trial.
2. I have heard the learned Counsel for the parties. In my opinion, the view taken by the learned Sessions Judge is correct. Under Section 239, Clause (d), Criminal P.C., persons accused of different offences committed in the course of the same transaction can be charged and tried together. Now, the question for my consideration is whether the offence committed by Haddan, accused and the offences committed by the other four applicants were committed in the course of the same transaction. The reply to this question must be in the negative in view of the finding of the first two Courts. The prosecution case was that applicants 1 to 4 had committed certain offences on the evening of 29th June and that later on, on the following day, Haddan, applicant 5, had committed an offence under Section 323, Penal Code, by beating the complainant. Therefore it cannot be said that the different offences were committed in the course of the same transaction. The joinder of the two charges was in contravention of the provisions of the Code of Criminal Procedure and 'was illegal.
3. The view taken by this Court in the case Putto Lal v. Emperor A.I.R. 1924 All 316 appears to be applicable to the case before me. On behalf of the complainant, it was contended that the joint trial of applicants 1 to 4 with applicant 5 was a mere irregularity which would be covered by Section 537, Criminal P.C. I find myself unable to accept this view. As the offences were not committed in the course of the same transaction Section 239, Clause (d), Criminal P. Code, does not apply to the case. As laid down by Section 233, Criminal P.C., there should have been separate charges and separate trials for distinct offences. The offence which Haddan, accused is said to have committed is quite distinct from the offences said to have been committed by the other four applicants. So the joint trial of applicant 5 with the other four applicants amounted to an illegality which is not cured by Section 537, Criminal P.C. This Court, following the view taken by their Lordships of the Privy Council in Subrahmania Ayyar v. Emperor (1902) 25 Mad 61, held in the case reported in Sewak v. Emperor : AIR1928All417 , that disobedience to an express provision of law as to mode of trial was much more than an irregularity. I follow the view taken in this ruling. I hold that where persons committed different offences not committed in the course of the same transaction are jointly charged and tried, the trial is illegal. To a case of this nature Section 537, Criminal P.C., would not apply. I therefore hold that the joint trial of the five applicants was illegal. I accept the reference made by the learned Sessions Judge and set aside the conviction of the five applicants. I direct that the five applicants be retried. Applicants 1 to 4 will be tried separately from applicant 5.