1. This is a Rule calling upon the District Magistrate to show cause why the conviction and sentence passed upon the petitioner should not he set aside.
2. The petitioner was charged along with others of having committed an offence punishable under Section 147 of the Indian 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 Section 323 of the Indian 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.
3. 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.
4. Section 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 Section 323 of the Indian Penal Code.
5. 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 Cede.
6. It has been held in a series of cases in this Court that the neglect to observe the provisions of Section 233 of the Code renders the trial illegal.
7. 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 Mandal 10 C.W.N. 53 : 3 Cr.L.J. 141 and end with the case of Asgar Ali v. Emperor 20 Ind. Cas. 609 : 17 C.W.N. 827 : 14 Cr.L.J. 449 : 40 C. 8463. Those cases which are binding on us clearly cover the question which we have to decide.
8. 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.
9. There is, however, a later decision of this Court, Musai Singh v. Emperor 22 Ind. Cas. 1008 : Cr. L.J. 224 : 41 C. 66 : 18 C.W.N. 183 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. Emperor 22 Ind. Cas. 1008 : Cr. L.J. 224 : 41 C. 66 : 18 C.W.N. 183 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.'
10. 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 fount 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 Section 537, which is the only section (if any) that can 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 Section 233 and a neglect of the provisions contained in that section is not, I think, cured by Section 537.
11. 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. Emperor 22 Ind. Cas. 1008 : Cr. L.J. 224 : 41 C. 66 : 18 C.W.N. 183 but I approve and follow such decisions. In my opinion the case of Musai Singh v. Emperor 22 Ind. Cas. 1008 : Cr. L.J. 224 : 41 C. 66 : 18 C.W.N. 183 was wrongly decided and as it is contrary to the series of the earlier decisions of the Court we are not bound by and ought not to follow it.
12. The present Rule ought, therefore, I think, to be made absolute and the petitioner should be re-tried according to law.
13. 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 Megitala voluntarily caused hurt to Khalifa Ahir and Ram Bilas Lal and thereby committed an offence punishable under Section 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.'
14. The only ground urged by the petitioner's Vakil is that the charge above quoted is defective and, therefore, on the authority of the case of Subramania Aiyar v. Emperor 25 M. 61 : 28 I.A. 257 : 11 M.L.J. 233 : 3 Bom. L.R. 450 : 5 C.W.N. 866 : 2 Weir 271 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 inspite of that fact I feel no doubt whatever that the Rule ought to be discharged.
15. The five cases of this Court quoted by Dr. Dwarka Nath Mitter were the following in order of time, (1) Gul Mahomed v. Cheharu Mondal 10 C.W.N. 53 : 3 Cr.L.J. 141. The accused was convicted on one charge of extorting a muchilika 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 Subramania Aiyar's case 25 M. 61 : 28 I.A. 257 : 11 M.L.J. 233 : 3 Bom. L.R. 450 : 5 C.W.N. 866 : 2 Weir 271. (2) Johan Subama v. Emperor 10 C.W.N. 520 : 2 C.L.J. 618 : 3 Cr.L.J. 111. 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 Aiyar's case 25 M. 61 : 28 I.A. 257 : 11 M.L.J. 233 : 3 Bom. L.R. 450 : 5 C.W.N. 866 : 2 Weir 271 this would seem to be an illegality which vitiates the trial and cannot be cured by Section 537.' Then referring to a case cited by the Deputy Legal Remembrancer, this does not relate to a defect under Section 233, Criminal Procedure Code, which according to the ruling of the Privy Council above referred to vitiates the trial.' (3) Tilakdhari Das v. Emperor 6 C.L.J. 757 : 6 Cr.L.J. 442. 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 33 C. 292 : 10 C.W.N. 32 : 3 Cr.L.J. 126 and of offences on the authority of Julian Subarna v. Emperor 10 C.W.N. 520 : 2 C.L.J. 618 : 3 Cr.L.J. 111 and Gul Mahomed v. Cheharu Mandal 10 C.W.N. 53 : 3 Cr.L.J. 141. The learned Judges remarked that the cases cited carried the rule in Suhrahmania Aiyar's case 25 M. 61 : 28 I.A. 257 : 11 M.L.J. 233 : 3 Bom. L.R. 450 : 5 C.W.N. 866 : 2 Weir 271 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 Section 222, Criminal Procedure Code, 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 were separately specified. (4) Srish Chandra Muketjee v. Emperor 4 Ind. Cas. 16 : 10 Cr.L.J. 469 : 13 C.W.N. 1067. 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 Subaina v. Emperor 10 C.W.N. 520 : 2 C.L.J. 618 : 3 Cr.L.J. 111 and Gul Mahomed v. Cheharu Mandal 10 C.W.N. 53 : 3 Cr.L.J. 141 were cited, and the learned disposed of the case on the authority of those cases, without expressing any opinion on the correctness of the view propounded. (5) Asgar Ali v. Emperor 20 Ind. Cas. 609 : 17 C.W.N. 827 : 14 Cr.L.J. 449 : 40 C. 8463. 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. Harington, J., said the charge was bad in view of Section 233. Coxe, J., said that as the charge framed was illegal, the conviction could not stand in view of Subramania Aiyar's case 25 M. 61 : 28 I.A. 257 : 11 M.L.J. 233 : 3 Bom. L.R. 450 : 5 C.W.N. 866 : 2 Weir. 271. The authority of this case is considerably weakened as the learned Judges do not seem to have referred to Section 222 of the Code of Criminal Procedure and their decision is directly contrary to the decisions in Samiruddin Sarkar v. Nibaran Chandra Ghose 8 C.W.N. 807 : 31 C. 928 : 1 Cr.L.J. 791 and Sat Narain Tewari v. Emperor 10 C.W.N. 51 : 32 C. 1085 : 3 Cr.L.J. 138. 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.
16. In only one of these five cases, the second, was the Crown represented.
17. The case in the Allahabad High Court is that of Emperor v. Fattu 29 A. 195 : A.W.N. (1903) 231 : 1 Cr.L.J. 364. 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 Aiyar v. Emperor 25 M. 61 : 28 I.A. 257 : 11 M.L.J. 233 : 3 Bom. L.R. 450 : 5 C.W.N. 866 : 2 Weir 271 that the disregard of the express provisions of Sections 233 and 234 of the Code of Criminal Procedure was not a mere irregularity, such as could he remedied by Section 537, but was altogether illegal.'
18. It will be noticed that in two of the above six cases the Privy Council is represented as having decided that a defect under Section 233,Criminal Procedure Code, 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 Section 233, by joining charges beyond the limits specified in Section 234,vitiated the trial. A reference to the judgment itself will show that their Lordships made no mention of Section 233, Criminal Procedure Code. The head-note of the report does, it is true, say that one of the counts of the indictment contravened the provisions of Sections 233 and 234, but the judgment itself from beginning to end deals with Section 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 27 C. 839 : 4 C.W.N. 656 have reference to Section 234 only, as in that case there was a joinder of offences not committed within the space of 12 months.
19. In a passage that is frequently quoted, Lord Halsbury, L.C., who also delivered the judgment in Subramania Aiyar case 25 M. 61 : 28 I.A. 257 : 11 M.L.J. 233 : 3 Bom. L.R. 450 : 5 C.W.N. 866 : 2 Weir 271, says in Quinn v. Leathern (1901) A.C. 495 : 70 L.L.P.C. : 85 L.T. 289 : 50 W.R. 139 : 65 J.P. 708 : 17 T.L.R. 749: '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 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.'
20. Now in those cases in this Court in which the learned Judges have expressed the opinion that a defect under Section 233 vitiates the trial, they have considered themselves bound by Subramania Aiyar's case 25 M. 61 : 28 I.A. 257 : 11 M.L.J. 233 : 3 Bom. L.R. 450 : 5 C.W.N. 866 : 2 Weir 271. 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.
21. 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 Aiyar's case 25 M. 61 : 28 I.A. 257 : 11 M.L.J. 233 : 3 Bom. L.R. 450 : 5 C.W.N. 866 : 2 Weir 271 not an authority on the result of a disregard of the first part of Section 233, Criminal Procedure Code, but the generality of the expressions' used in the judgment does not even bear on the question. Dr. Dwarka Nabh 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.' Hut 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.
22. If then Subramania Aiyar's case 25 M. 61 : 28 I.A. 257 : 11 M.L.J. 233 : 3 Bom. L.R. 450 : 5 C.W.N. 866 : 2 Weir 271 is not to be regarded as an authority for the proposition advanced for the petitioner, is the defect in the charge curable r1 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 Aiyar v. Emperor 25 M. 61 : 28 I.A. 257 : 11 M.L.J. 233 : 3 Bom. L.R. 450 : 5 C.W.N. 866 : 2 Weir 271.
23. The object of Section 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.
24. This was in effect the view taken in the case of Moharuddi Malita v. Jadu Nath Mandnl 11 C.W. 54 : 4 Cr.L.J. 415 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 wore convicted and separately sentenced for three offences of theft. Even though they were charged with having committed 'an offence', they were convicted or three offences. The learned Judges held that this was an error of form and not of substance, an irregularily 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.
25. The learned Judges also distinguished the case from that of Out Mahomed v. Cheharu Mandal 10 C.W.N. 53 : 3 Cr.L.J. 141 on the ground that in that case the two offences wore 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 Moharuddi Malita v. Jadu Nath Mandul 11 C.W.N. 54 4 Cr.L.J. 415 it is good in the present case.
26. The mere fact that the letters (a), (b) and (c) were used in Moharuddi Malita v. Jadu Nath Mandul 11 C.W.N. 54 4 Cr.L.J. 415 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 wore 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.
27. 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.
28. In the case of Musai Singh v. Emperor 22 Ind. Cas. 1008 : Cr. L.J. 224 : 41 C. 66 : 18 C.W.N. 183 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 Section 420, Indian Penal Code, covering the three different acts. It was held that the charge was defective for duplicity and not misjoinder and the case of Subramania Aiyar v. Emperor 25 M. 61 : 28 I.A. 257 : 11 M.L.J. 233 : 3 Bom. L.R. 450 : 5 C.W.N. 866 : 2 Weir 271 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 4 Ind. Cas. 16 : 10 Cr.L.J. 469 : 13 C.W.N. 1067 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 Sections 535 and 537, Criminal Procedure Code. 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.
29. 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 Section 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 (I) where the name of the accused or of the person against whom the offence was committed is omitted from or wrongly given in the charge, (2) where the common object is not specified in a charge of rioting.
30. 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 Section 537. The second is also an omission, and if the common object is one of the particulars required by Section 222 to be given in the charge, then Section 225 would care the defect and recourse to Section 537 would be unnecessary. I1 hat section then must apply to some other state of things.
31. What is the effect of the words subject to the provisions hereinbefore contained' in Section 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 the section must be read as having reference to Sections 529 to 536. The Chapter in which those sections are included is headed Of Irregular Proceedings' and Sections 529 to 536 deal directly with the effect of various irregularities, including some cases of want of jurisdiction. In some cases, the irregularity is fatal in others not. Then follows Section 537 a general saving section which is, however, limited by the foregoing sections in the same Chapter. In one of the sections before Section 537, viz., Section 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 Section 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 Section 537, it is difficult to see how the petitioner's contention that the trial is bad be cause there was one charge instead of two, can be supported.
32. I consider it is impossible to define accurately what is meant by 'irregularity' in Section 537 and undesirable to attempt such a definition. The Judicial Committee &ay;, 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 Section 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.
33. 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 caused to two persons amounted only to one offence. Not only his this indicated by 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 'charges 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. Cheharu Mandal 10 C.W.N. 53 : 3 Cr.L.J. 141; Johan Subarna v. Emperor 10 C.W.N. 520 : 2 C.L.J. 618 : 3 Cr.L.J. 111 and Srish Jhandra Mukerjee v. Emperor 4 Ind. Cas. 16 : 10 Cr.L.J. 469 : 13 C.W.N. 1067 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.
34. 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,' and 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.
35. If the charge is treated as one of one offence only, the Magistrate has merely told him that causing hurt to two persona amounts to one offence, whereas he might have charged, convicted and sentenced him for two. In such a case the provisions of Section 233 have not been contravened, for the accused is in effect accused of one offence only.
36. 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 Moharuddi Malita v. Jadu Nath Mandul 11 C.W.N. 54 4 Cr.L.J. 415 that the error is one of form and not of substance and that taken in Musai Singh v. Emperor 22 Ind. Cas. 1008 : Cr. L.J. 224 : 41 C. 66 : 18 C.W.N. 183 to that taken in the cases cited on behalf of the petitioner. In the other, the provisions of Section 233 have not been contravened.
37. To recapitulate, I am of opinion (1) that the case of Subrahmania Aiyar v. Emperor 25 M. 61 : 28 I.A. 257 : 11 M.L.J. 233 : 3 Bom. L.R. 450 : 5 C.W.N. 866 : 2 Weir 271 is not an authority for the proposition that failure to observe the first part of Section 233 is fatal to the trial, (2) that if we are merely to follow authority, we must follow Moharuddi Malita v. Jadu Nath Mandul 11 C.W.N. 54 4 Cr.L.J. 415 in which the learned Judges made it a distinguishing feature that the offences were committed on the same occasion-a distinction which applies to the present case, and in view of that distinction the cases cited by the petitioner do not apply, (3) that if Moharuddi Matila v. Jadu Nath Mandul 11 C.W.N. 54 4 Cr.L.J. 415 is not distinguishable from the other cases, it is a more correct interpretation of Section 537 than the other cases, which do not discuss Section 537, (4) that if petitioner had been convicted of one or two offences under Section 323 without any charge at all, the defect would not in view of Section 535 have been necessarily fatal, much less can it be where in fact there has been a charge under Section 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 Section 233.
38. 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 (1842) Car. & Mar. 634 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 Moharuddi Malita v. Jadu Nath Mandul 11 C.W.N. 54 4 Cr.L.J. 415 distinguished it from the case of Gul Mahomed v. Cheharu Mandal 10 C.W.N. 53 : 3 Cr.L.J. 141.
39. In a recent case, the case of Rex. James Andrew Thompson (1914) 9 Cr. App. rep. 252 : 85 L.J.K. 643 : 2 K.B. 99 : 110 L.T. 272 : 78 J.P. 212 : 24 Cox. C.C. 43 : 30 L.T.R. 223, 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 Section 537, Criminal Procedure Code.
40. In conclusion I may mention that it would be difficult to find a case where a mere technicality, if upheld, would lead to more absurd results than in this case. The petitioner has been sentenced to six months' imprisonment under Section 147 and to two months' under Section 323. The sentences are to run concurrently, yet because he has been charged on only one charge instead of two under Section 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 Section 323.
41. I think the Rule should be discharged and the petitioner committed to jail to serve out the rest of his sentence.