Francis W. Maclean, K.C.I.E., C.J.
1. The question submitted for our consideration upon this reference is 'whether's. 537 of the Code of Criminal(sic) can be applied to any case in which the trial has been held on charges (sic) together, contrary to Section 234 of the Code of Criminal Procedure.' From the statements on the reference, it would appear that the petitioner Abdur Rahman, was tried on a charge (1) of extortion committed on 1st February 1898, and upon two other charges, whilst the other petitioner Keramat was tried only upon the two latter charges. The reference states--and this has not been contested--that so far as the first-mentioned offence, it could not properly be tried in the same trial (Section 234, Code of Criminal Procedure) with the other offences, as they were not committed within one year and the petitioners contend that the trial was illegal and void by reason of the addition of the charge for the offence committed on 1st February 1898, and that this illegality could not be cured under Section 537 of the Code.
2. Put shortly, the case raised by the petitioners is that inasmuch as, Tinder Section 233 of the Code, for every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately (saving the exceptions mentioned), and that, inasmuch as that course was not pursued in the trial of the present petitioners, what was done was illegal, and, if illegal, the illegality cannot be regarded as a mere error, omission, or irregularity under Section 537 of the Code; and, if so, that the latter section has no application to the case. That contention is admittedly based upon three 'decisions of this Court. In the matter of Luchminarain (1886) 1. L.R., 14 Cal, 128; Queen-Empress v. Chandi Singh (1889) I.L.R., 14 Cal, 395; Raj Chunder Mozumdar v. Gour Chunder Mozumdar (1894) I.L.R., 22 Cal, 176, cases, however, which are at variance, so far as the principle is concerned, with those which have been cited to us, and which are Queen-Empress v. Kutti, 1888) I.L.R., 11 Mad., 441; Queen-Empress v. Ramana (1889) I.L.R., 12 Mad., 273; Queen-Empress v. Mulua (1893) I.L.R., 14 All, 502; and Beg. v. Sanrmmta (1877) I.L.R., 14 Bom., 610. But for the views expressed by the Judges of this Court, and which are entitled to every respect, I should scarcely have thought the point was open to very serious argument. The failure to try the charge separately was certainly an error, omission, or irregularity in the proceedings before or during the trial, an irregularity, however, to which no exception was taken by the accused at the time of trial. It might then have been taken. But, unless such error, omission or irregularity has occasioned a failure of justice, it is cured by Section 537. I am unable to accept the view suggested by the learned Counsel for the petitioner, that the error or irregularity was not in proceedings before or during trial, but in some proceeding dehors the trial altogether. I dare say it is my own want of appreciation, but I have not been able to follow that line of argument.
3. To proceed to the cases upon which this application is based, I may point out, with regard to the first case of In the matter of Luchminarain (1886) L.R., 14 Cal, 128, that the observations made by the late Chief Justice, Sir Comer Petheram, were not necessary for the purposes of the case then under consideration. It was a mere obiter dictum. But in the later case in the same volume the same learned Judge says at page 397: 'Under these circumstances we think that the trial was illegal, it having been a trial which is prohibited by the terms of the law as contained in Section 233, and we do not think that Section 537, which cures errors, omissions or irregularities, is intended to cure, or does cure, an absolute illegality.'
4. But, if this view be well founded, Section 537 might as well be struck out of the Code, for every error or irregularity, in so far as it contravenes the provisions (sic) is in a Sense, illegal, but it was to provide against these illegalities vitiating the proceedings that Section 537 was enacted, with, of course, the important reservation that, if the error or irregularity occasioned a failure of justice, then the section was not to apply. If an Act of the Legislature prescribes that a certain thing is to be done in a particular way, and it is not done in that way, the error, omission or irregularity in so acting is illegal, for the act has not been done as the law prescribes, but then Section 537 steps in and says the proceedings are not to be regarded as vitiated by such error, omission or irregularity, unless a failure of justice has been occasioned. It must be a question of degree in each case. If the error be such as to have occasioned a failure of justice, then Section 537 does not cure the defect; but, if it was not of such a nature, then it does. The question of whether or not the act was illegal or not cannot be the true test. The illustration given to the section itself exemplifies this. It says: 'A Magistrate, being required by law to sign a document, signs it by initials only, that is purely an irregularity, and does not affect the validity of the proceedings.' In not signing with his name, the Magistrate, in strictness, acted illegally; but, though he acted illegally, it is none the less an irregularity which can be cured under Section 537. For these reasons I respectfully decline to follow the decisions in this Court which have been referred to.
5. Apart from the questions of whether or not the language of Section 233 of the Code is directory only--as to which there may be something to be said--it is quite clear that, in this case, there was merely an error, omission or irregularity in the proceedings within the meaning of Section 537 of the Code, accepting, as I do, for this purpose the argument of Sir Griffith Evans, that the words 'subject to the provisions hereinbefore contained' appearing at the commencement of the section, apply to all the preceding provisions of the Code, and not merely to the provisions of the chapter in which that section appears.
6. I do not propose to deal with a variety of cases which have been cited, many of them dealing with questions of criminal practice and procedure in England. They do not appear to me to be very, if at all, pertinent. We have the Code before us, and what we have to do is to construe the Code and ascertain to the best of our ability, what the Legislature meant. I entertain no doubt what it meant, or that the question submitted to us must be answered in the affirmative. I may, perhaps, add that my view appears to ma to be strongly supported by the explanation to Section 537, which is a new addition to the Code.
7. With respect to the procedure we should adopt in disposing of the case, the language of Rule 5 of chapter V of the Rules of the High Court, Appellate Side, relating to references to the Full Bench in criminal matters, is sufficiently wide to enable us to send the case back, with this expression of our opinion upon the point of law raised, to the Bench which referred it, for final disposal. And this will be done.
8. I am of the same opinion. I have no doubt that misjoinder of charges can be dealt with under Section 537 of the Code of Criminal Procedure, and in the consideration of such a matter, the Court will be bound by the terms of the concluding portion of the section and the explanation. It seems to me that Section 233 of the Code does not bar the application of this section. No doubt, it has the appearance of expressing the law as mandatory in this respect, seas to require that every distinct offence of which any person is accused shall form the subject of a separate charge. But this section could not; be otherwise expressed, and the fact that the word shall' has been used in Section 233 does not bar the application of Section 537 of the Code, if a subordinate Court should have acted in contravention of the terms of Section 233, I may observe, too, with reference to such a case that the rule we propose to follow is that which has long been the practice of this Court. That practice has been interrupted by the cases in Indian Law Reports, 14 Calcutta. In a case in which on facts found, an offence which has not been charged has been committed, this Court has always considered whether the conviction could be altered to one of that offence. The Court would in such a case, consider whether the accused had had full opportunity to defend himself against such a charge. If he had not, a fresh trial from that point would be ordered. So, in a case like that before us, when there has been a misjoinder of charges, the Court would consider whether, on the evidence in respect of the offences which could be properly charged, the accused could and should be convicted, and whether the misjoinder has so far prejudiced the accused as to have occasioned a failure of justice. In the latter event a fresh trial would be ordered. The proceedings would not, however, be bad in law so as to make them null and void. For these reasons I agree with my lord the Chief Justice in answering the question referred to this Full Bench.
9. I agree in answering the question referred to the Full Bench in the affirmative.
10. I am of the same opinion. The irregularity that has occurred in the trial of this case appears to me not to be an illegality which renders the proceedings altogether null and void, but one which can be cured by Section 537 of the Code of Criminal Procedure.
11. I am of the same opinion. The English cases which were referred to are useful as disposing of the contention that the trial of a man on several charges at once was such an essential unfairness as to necessarily involve a failure of justice. It was never so held in England, and to this day, in cases of misdemeanour, it is the common practice to try a man for several misdemeanours on the same indictment. We start, therefore, with the position, that the trial of a man for several offences on one indictment was not such an essential unfairness as to amount to a failure of justice. Has Section 233 of the Code, then, had the effect of making that which is not prima facie fatal to the fair trial of the prisoners, a fatal bar to the fair trial of the prisoners who are tried in breach of it? I do not think that Section 233 has had that effect; and if it has not had that effect, it amounts only to an irregularity, which comes within Section 537 of the Code. For this reason, I agree in thinking that this question should be answered in the affirmative.