Shiv Dayal Srivastava, J.
1. The petitioner was tried by the Magistrate First Class Agar under Section 215 of the Penal Code for having taken Rs. 200/- from Gangaram whose buffaloes had been stolen but not doing his all to get the thieves convicted.
2. He was sentenced to suffer Rule I, for one year. The conviction and sentence have been maintained by the Additional Sessions Judge, Shajapur.
3. The prosecution case was that two buffaloes belonging to Gangaram were stolen from his house. He went in search for them. He received information that the buffaloes had been seen with Dewa Balia (petitioner). He was, therefore, contacted. He agreed that the buffaloes would be restored to Gangaram provided he was paid Rs. 200/-. This took place soon after the theft which itself had taken place on the night between the 29th and the 30th November 1956. The agreement between Gangaram and Dewa Balia was arrived at in the morning of November 30, 1956. The amount was paid to him thus; Rs. 175/- paid in cash and one armlet (Bajuband) valued at Rs. 25/- was delivered. On 1-12-1956, Dewa Balia restored the buffaloes to Gangaram in a jungle.
Along with the petitioner, Dewa Bagri, Shankar and Amar Singh were also tried, the latter three for the offences under Section 380 of the Penal Code. There was a joint trial of all the four accused above-named. However the other three were acquitted and the petitioner Dewa Balia alone was convicted. Shri Atal, learned counsel for the petitioner has attacked the prosecution evidence as unreliable. In my opinion, there is no substance in this contention. The learned courts below have rightly held on the basis of the evidence of Gangaram (P. W. 2), Hukum Singh (P. W. 4) and Rod Singh (P. W. 6) that the appellant agreed to restore the buffaloes in exchange of Rs. 200/- and that be took them to a jungle where the cattle were actually restored to the possession of Gangaram. Shri Atal could not point out anything to persuade me to interfere with that finding of fact.
4. Then it has been urged on behalf of the petitioner that his plea of alibi was wrongly rejected by the Courts below. He led evidence to show that on 30-11-1956 he was in fact, present in the court of the Sub-Divisional Magistrate, Shajapur. This contention too is devoid of force. It has been rightly found that Shajapur and Pachore were connected by two motor buses so that he could be present at both the places on the same day. On that ground no interference with the finding of the trial court is possible.
5. Shri Atal has next contended that the whole trial was vitiated because of the contravention of Section 239 of the Code of Criminal Procedure. The argument is that the charge against the appellant was under Section 215 I. P. C. while that against the others was under Section 380 I. P. C. and this was not permissible because the offences were different and were not committed in the course of the same transaction,
6. It must be mentioned at once that when, the accused was examined under Section 342, Cr. P. C. he did not say a single word against Dewa Bagri or Shankar or Amar Singh. His plea was that of ignorance of the theft and every thing that followed. It would have been a different matter if the petitioner's plea was that he had received Rs. 200/-and he used all means in his power to cause the thieves to be apprehended and convicted of the offence. Instead he completely denied having received the money and further, he stated that the whole case was fabricated because of enmity with Hukum Singh.
7. Shri Atal has supported his contention by the decisions reported in Raj Narain v. The State, AIR 1953 All 448, Sheo Pujan Koiri v. The State AIR 1954 Pat 365, Amar Singh v. The State, AIR 1954 Punj 106 and Umar Bin v. The State, AIR 1954 Sau 15. In those cases the offences and circumstances were quite different from those in the present case. It is true that a misjoinder of several persons in one trial was held to be an illegality not curable by Section 537 of the Code of Criminal Procedure.
8. The effect of misjoinder of charges and misjoinder of accused persons in a single trial has been a matter of judicial controversy. Questions in that regard were considered by the Privy Council more than once.
9. In the case of Jenardhan Reddy v. State of Hyderabad, 1951 SCR 344: (AIR 1951 SC 217), their Lordships of the Supreme Court had an occasion to consider the point. After referring to Privy Council cases, their Lordships observed as follows:
'That case N. A. Subramania Iyer v. Emperor, 28 Ind App 257 (PC), had somewhat peculiar features, because the accused was tried for no less than 41 separate offences in contravention of the provisions of Section 234 Cr. P. C. ....The case has bean discussed, explained and distinguished in a number of cases, and it must be read with the subsequent decisions of the P. C. in Abdul Rahman v. Emperor, 54 Ind App 96: (AIR 1927 PC 44) and Babulal v. Emperor, AIR 1938 P. C, 130, which have been understood by some of the Indian Courts to have merely modified and restricted the very broad rule which at cne time there was a tendency to deduce from certain observations made by the Privy Council.'
Their Lordships continued:
'It may be that on a more appropriate occasion we may have to review the case law on the subject and lay down the true scope of the pronouncements made by the P. C. in the cases referred to above and the effect which in law the misjoinder of charges would have upon the trial, But, for the purposes ef the present case it is sufficient to point out that even if we assume that there was some defect in the procedure followed at the trial, it does not follow that the trial court acted without jurisdiction.'
10. Now in the pronouncement of their Lordships in Willie (William) Slaney v. State of Madhya Pradesh, (S) AIR 1956 S. C. 116, there has been an exhaustive discussion of the whole subject and the law has been fully laid down. The decisions of the Privy Council in Subramania Ayer's case, 28 Ind App 257, Abdul Rahman's case, AIR 1927 P. C. 44, Atta Mahomed v. Emperor, AIR 1930 P. C. 57, Babulal Chokhani's case, AIR 1938 P. C. 130 and Pulukuri Kotaiya v. Emperor, AIR 1947 P. C. 67, have been fully reviewtd. In W. Slaney's case, AIR 1956 SC 116, S. Rule Das Acting C, J. (as he then was) and Bose J., have made general observations as to the effect of procedural errors committed in the course of a trial, which, if I may say so with respect, must be always remembered:
'The Code is a code of procedure and, like all procedural, laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice.'
'If he does, if he is tried by a competent Court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of the Jaw, more mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the code is based.'
'Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth.'
'These go to the foundation of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established notions of natural jusiice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of cur land, because either way they would be struck down at once.'
'Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused.'
'In the end, it all narrows down to this some things are 'illegal', that is to say, not curable, because the Code expressly makes them so; others are struck down by the good sense of judges who, whatever expressions they may use, do so because those things occasion prejudice and offend their sense of fair play and justice.'
'When so struck down, the conviction is 'invalid'; when not, it is good whatever the 'irregularity'. It matters little whether this is called an 'illegality', an 'irregularity', that cannot be 'cured' or an 'invalidity', so long as the terms are used in a clearly defined sense.'
11. In the present case, the question is whether the trial of the petitioner is vitiated because he was tried under Section 215 I. P. G. jointly with, others, who were tried under Section 380 of the Code. It is proved that the pelilioner after receiving the settled consideration got the cattle restored to the complainant. The offence consisted in not getting the culprits apprehended and convicted. Sari Aral's argument is that if such an accused is joined in the same trial of those alleged to have committed the theft he is denied the opportunity of being a witness against them and thereby doing all that lies within his means to get them convicted. The argument appeals as sound. And in that view it may be diificult to hold that the expression, 'persons accused of assisting in the disposal' of stolen property within the meaning of Section 239(e) includes a person charged with the offence under Section 215 I. P. C.
It must be mentioned here that authorities are conflicting on the point whether the thief or suspected thief can be convicted under Section 215 I. P. C. or alternately with Section 379 or Section 411 I. P. C. Here, there was not charge against the petitioner under Section 380 Penal Code, nor were any facts constituting that offence stated in the charge. But, so far as the present case is concerned, I do not think that I am called upon to consider these questions. The whole difficulty in the petitioner's case which Shri Atal has not been able to surmount is that he completely denied having received the money and having restored the stolen cattle to Gangaram. That being so, the claim of the petitioner for a fresh trial is futile. It is really not possible to hold in the peculiar circumstances of the case that the accused has been in any way prejudiced by a joint trial.
12. Lastly, it has been argued that the conviction under Section 215 was not legal inasmuch as the prosecution did not prove all the ingredients of the offence. According to the learned counsel, it was the duty of the prosecution to have proved not only that the petitioner took the gratification for recovery of the cattle, but also that he did not use all means in his power to cause the real thieves to be apprehended and convicted of the offence. In my opinion, this argument is not correct. Once it is established by the prosecution that the accused accepted the gratification, he must be found guilty under Section 215 unless and until he successfully proves that he did all that lay within his means for the apprehension and conviction of the real culprits. If any authority is needed, Arman Ulla v. Jaimulla, AIR 1933 Cal 599, may be referred to.
13. Shri Atal has also appealed that the sentence is excessive. I do not see any ground to interfere with the discretion exercised by the two courts below in this regard.
14. For all these reasons I do not see anyerror in the conviction, and the sentence also isproper. The revision is, therefore, dismissed.