1. The appellant and another accused were charged with offences under Sections 366, 376, 497 and 498, I.P.C., and were convicted of offences under Sections 366 and 376 and sentenced each to five and seven years respectively, to run concurrently. The only point of substance raised on this appeal is, that the charge under Section 366 was in form illegal, and that the appellant was prejudiced thereby. The charge read as follows:
That you on or about 29th May 1932, at Makharpur, Nowgaon P.S., kidnapped or abducted a woman, to wit, Bela Bibi, in order that the said woman may be forced or seduced to illicit intercourse and thereby committed an offence punishable under Section 366, I.P.C.
2. The contention on behalf of the appellant is that Section 233, Criminal P.C., provides that for every distinct offence there shall be a separate charge, and that kidnapping and abducting are distinct offences. Section 236, Criminal P.C., provides that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged in the alternative with having committed some one of the said offences. According to the Indian Penal Code, kidnapping is of two kinds: kidnapping from British India and kidnapping from lawful guardianship Section 359, I.P.C.
Whoever conveys any person beyond the limits of British India without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from British India:' Section 360, I.P.C.
Whoever takes or entices any minor under 14 years of age, if a male, or under 16 years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardianship of such minor or person of unsound mind without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship:
Section 361, I.P.C.
3. 'Abduction' is described in Section 362 as follows:
Whoever by force compels, or by any deceitful means induces, any person to go from any place is said to abduct that person.
4. Section 363 provides the punishment for kidnapping, Section 364 for kidnapping or abducting in order to murder, and Section 365 for kidnapping or abducting with intent to confine. Section 366 provides that
whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. And whoever, by means of criminal intimidation, as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.
5. Bela Bibi wag married, and was 15 years old at the time when the alleged offence was committed. She had gone outside her husband's hut at night in order to make water, and had been seized, taken away and raped by the two accused. Having regard to the decision in Meher Sheik v. Emperor : AIR1931Cal414 , it is clear that the case did not come within the provisions of Section 236, Criminal P.C. It is equally clear that the ingredients of the two offences of kidnapping and abduction are different. The charge not only referred to each of these distinct offences in the alternative, but failed to give any particulars to show which kind of kidnapping was alleged, or the age of the woman, or alternatively whether unsoundness of mind was alleged. Such a charge leaves the accused without any sufficient indication of the case which he will have to meet. Whether he must came prepared with evidence to show that the girl was over 16, or not in the keeping of her lawful guardian, or that she was taken with the guardian's consent, or whether he must direct his efforts to proving that she came away of her own free will and without the use of force or deceit. It is not sufficient merely to charge the accused in the bare words of a section of the Code. Particulars must always be given sufficient to give him notice of the matter with which he is charged (Section 222, Criminal P.C.). The charge in the present case was defective in these respects, but I cannot say that the omissions have occasioned a failure of justice. Consequently, Section 537, Criminal P.C., applies, and the conviction cannot be set aside on this ground alone.
6. But the charge also offends against the provisions of Section 233, Criminal P.C., two distinct offences in the alternative having been included within it, in circumstances to which Section 236, Criminal P.C., does not apply, and on this point I agree with the decision in Mafizaddi v. Emperor : AIR1927Cal644 . It is argued however on behalf of the Crown that this also is a mere irregularity and is cured by Section 537, Criminal P.C. On the point whether, and in what circumstances, this section is applicable, there has been much divergence of opinion. Prior to 1900, a number of differing decisions had been given in the Indian Courts, Calcutta, and some of the other Courts being at variance. In that year, in the case of Abdur Rahman (1900) 27 Cal 839 it was decided by a Full Bench of this Court, contrary to previous decisions of the Court, that without any doubt the section could be applied to any case of misjoinder under Section 234, Criminal P.C., subject of course to the proviso that no failure of justice had been occasioned thereby. Sir Francis Maclean, C.J., and his brother Judges disagreed with the opinion of Sir Comer Petheram in Queen-Empress v. Chandi Singh (1687) 14 Cal 395 at p. 396 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.
7. Sir Francis Maclean considered that if this view were well-founded, Section 537 might as well be struck out of the Code for every error or irregularity in so far as it contravened the provisions of the Code, was in a sense illegal. These opinions however were expressly dissented from by the Privy Council in Subramania Iyer v. Emperor (1901) 25 Mad 61. Their Lordships were unable to regard disobedience to an express provision as to a mode of trial as a mere irregularity, which could be cured by Section 537. The trial was conducted in contravention of the Code of Criminal Procedure, Section 234, and was plainly illegal. When the Code positively enacts that such a trial shall not be permitted, such contravention does not come within the description of error, omission or irregularity. Such a phrase as irregularity is not appropriate to the illegality of doing something not permitted by law. This decision was followed in Gul Mahomed v. Cheharu Mandal (1906) 10 CWN 53 and Johan Subarna v. Emperor (1906) 10 CWN 520 both cases arising out of Section 233, Criminal P.C. These were followed in Tilakdhari Das v. Emperor (1907) 6 CLJ 757 and Asgar Ali Biswas v. Emperor (1913) 40 Cal 846 though Caspersz, J.,in the former case thought that they carried the 'rule laid down in Subramanias case (1901) 25 Mad 61 to an extreme length.' On the other hand in Moharuddi Malita v. Jadu Nath Mandal (1907) 11 CWN 54 where three similar offences on the same date and forming part of the same transaction were committed against three different persons, and included in the same charge, but distinguished as (a), (b) and (c), the Court held that, in the circumstances, this was only an irregularity and cured by Section 537. And in Musai Singh v. Emperor AIR 1914 Cal 288 it was decided that such a procedure amounted to duplicity and not misjoinder. It was not the mode of trial that was wrong, but merely the form of the charge.
8. In Ram Subheg Singh v. Emperor (1915) 16 Cr LJ 611 the whole subject was ably and exhaustively considered. By a majority it was decided that where the prisoner had been accused in one charge of causing hurt to two persons, arising out of the same transaction, this was an irregularity which could be cured by Section 537; that the words 'subject to the provisions hereinbefore contained' in that section have reference only to Sections 529 to 536; that Subramania's case (1901) 25 Mad 61 is not an authority for the proposition that failure to observe the first part of Section 233 is fatal to the trial. Their Lordships' observations are limited to cases where charges are tried together which the law expressly says shall not be tried together in the same trial, and 'mode of trial' therein mentioned refers to the constitution of the trial and not to the formal defect of drawing up one charge instead of two in a trial which is properly constituted. This decision was followed in Tames Khan v. Rajjabali Mir : AIR1927Cal330 , Subramania's case (1901) 25 Mad 61 was distinguished by the Privy Council in Abdul Rahaman v. Emperor , a case in which the High Court had decided that omission to observe exactly the mandatory provisions of Section 360, Criminal P.C., was merely an irregularity and not an illegality. In this judgment Subramania's case (1901) 25 Mad 61 and the application of Section 537 were carefully explained 'for the guidance of the Courts' and this decision now governs the interpretation of that section. This may render necessary the revision of some previous decisions, as circumstances occur: Emperor v. Erman Ali : AIR1930Cal212
9. I am in complete agreement with the observations in Ram Subheg Singh's case (1915) 16 Cr LJ 611, to which I have referred, and it is unnecessary for me to enlarge further upon the subject in the present case except to point out that if the appellant had been charged separately with kidnapping and with abduction he could have been tried at one trial for each of such offences: Section 235, Sub-section (2), Criminal P.C., Radhanath Karmakar v. Emperor AIR 1922 Cal 573. The result is that, in my opinion, the joinder of the two offences in the alternative in the one charge was in irregularity and not an illegality, and as I do not consider that any failure of justice has been occasioned, Section 537 applies. If I had thought that the appellant had been misled in his defence by this error in the charge, it would have been necessary to direct; a new trial under Section 232, Criminal P.C., but I am satisfied that he has not been prejudiced. Therefore the appeal is dismissed.
10. I agree that the appeal muse be dismissed for the reasons which have been given by my learned brother.