1. These two applications for revision have been made by Parsotam Das and Murli Dhar and Gulzari from two separate appellate orders passed by the Sessions Judge, Muttra, on two appeals against, one, judgment of a First Class Magistrate by which the applicants were sentenced : Gulzari to one year's simple imprisonment, and the other two applicants to a fine of Rs. 100 each, under Sections 500 and 501, Penal Code. The circumstances briefly are that a notice was printed on 19th July 1934, which was said to contain matter defamatory of the complainant. This notice was published on 20th July and distributed on 21st. The printers of the notice were the applicants. Parsotam Das and Murlidhar, and they were therefore charged under Section 501, while the other applicant Gulzar was charged with publishing and distributing the notice, which wias said to be an offence under Section 500, Penal Code. The applications were made on various grounds, but the principal ground was that the applicants were prejudiced by being tried jointly. It, is said that this was not a case to which Clause (d), Section 239. Criminal P. C., applied, that is to say, the offence, if any. committed by the printers began and ended, with the printing of the notice and was not part of the same transaction as the offence with which Gulzar Behari was charged. It is claimed, in the first place, that it was a misjoinder of charges that went to the very root of the matter, that is to say, it affected the mode of trial and was not merely an irregularity which could be cured by Section 537, Crimianl P.C., but was an illegality which could not be cured at all. This argument was advanced in the Court of the Sessions Judge, who held that the joint trial of Gulzar with the other accused was not 'really very regular,' but that it had not in any way prejudiced Gulzar's casie. In dealing with the appeal of the printers, the other two applicants, he also remarked that there was nothing to show that these two were in any way prejudiced by the joint trial.
2. The case for the applicants is largely based on a decision of their Lordships of the Privy Council in the case of Subramania Ayyar v. King-Emperor Mad(1902) 25 . 61. It was held there that a misjoinder of charges was not a mere irregularity which could be cured by Section 537, Criminal P.C.:
The disregard of an express 'provision of law as to the mode of trial,' their Lordships remarked, 'was not a mere irregularity, and they held that in the case before them the procedure had amounted to such a disregard of the provisions of the law.'
3. This decision is dated 1901, and it has been pointed out that the provisions of the Criminal Procedure Code, relating to the framing of a charge 'have been made wider by Section 63, Criminal P.C. Amendment Act of 1923 and that in the case of Kapoor Chand v. Suraj Prasad : AIR1933All264 , a Full Bench of this Court has discussed the decision of the Privy Council referred to above and interpreted it to mean that the sole criterion in. deciding whether proceedings in a criminal case have been vitiated by an error in procedure is the question of whether the irregularity had worked injustice to the accused or not. The Full Bench refused to draw a distinction between an 'illegality' and an 'irregularity.' It is to be noticed that the Full Bench was discussing the interpretation of Section 537, Criminal P.C., 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. Emperor , in which it has been held that a serious defect in the mode of conducting a criminal trial cannot be cured.
4. I am not however called upon to decide whether a violation of the provisions of the Criminal Procedure Code relating to the joinder of charges ought still to be held to be a defect in the mode of trial, or whether it is a mere irregularity in procedure; nor need I discuss whether the decision of the Full Bench will cover such a violation of the provisions of the Criminal Procedure Code, because after hearing the case, which has been fully discussed. I am of opinion that there has in reality been no violation of the provisions of Clause (d), Section 239, Criminal P.C. The complaint was made against all five accused on the basis that they had all joined in a plot to defame the complainant. There was, it is true, no definite accusation of conspiracy, nor was the case tried as a comspiracy. But the complaint was that the accused had all been acting together with the object of publishing and distributing the notice which was printed by some of them, and the trial Court definitely found that the accused were acting together for this purpose. In the appeal before the Sessions Judge this finding was not directly challenged, though it is a fact that the legality of the joint trial was called in question in the Magistrate's Court, and it may be argued that as this, too was one of the grounds of appeal in the Sessions Court, an objection to the finding of fact, namely, that all the accused had combined together to commit the offence, was challenged in that Court too. There can be no doubt that all the five accused believed themselves to be partners in a common defence, and nothing has been said to me to show that the finding of the Magistrate which is equivalent to a finding that the offences committed by the three applicants, though they may be distinguished, were really part of the same transaction, was not a proper finding. I am not therefore of the opinion that the provisions of the Criminal Procedure Code have been violated.
5. This being so, it is unnecessary to consider the other arguments that have been developed in this Court, namely, whether as a matter of fact the applicants were prejudiced by the form in which the trial was conducted, or whether the notice itself was defamatory. This last question indeed is probably not one which can legitimately be raised in revision. The result is therefore that the applications are dismissed.