1. The petitioner was with another person convicted under Section 411, Indian Penal Code, of dishonestly retaining some stolen tea which they had received from one Latna, who was tried jointly with them, and convicted of an offence under Section 381, Indian Penal Code.
2. It is urged that the joint trial of a person charged under Section 411 with a person charged under Section 381 is necessarily void, and the conviction bad. The case of Bishnu Banwar v. Empress (1896) 1 C.W.N. 35 seems to support this contention. It has, however, been very recently held by a Full Bench in In the matter of Abdur Bahman (1900) 20 I.L.R. Cal. 839 that misjoinder of charges is not fatal to the proceedings, but that it is an irregularity which requires that the Court should consider whether, under the terms of Section 537, Criminal Procedure Code, it has in fact occasioned a failure of justice. The same rule must, we think, be applied in a case of misjoinder of parties like the present one.
3. No objection to a joint trial appears to have been taken before the trying Magistrate. The evidence was that Latna was seen handing the stolen tea to the co-accused only a few hours after the theft. So that having regard to this fact, and to the explanation at the end of Section 537, Criminal Procedure Code, we are unable to see how the joint trial can have occasioned a failure of justice.
4. The view of the law we here give is the same as was taken by Prinsep and Handley, JJ., in the case of Kali Prosad Mahisal v. Queen-Empress Ante 7
5. In the result we direct that the rule be discharged.