Birichh Bhuian And Others vs State Of Bihar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 224/60

Decision Date: 20 November 1962

Coram: Syed Jaffer Imam, N. Rajagopala Ayyangar, J.R. Mudholkar, Subba Rao

Birichh Bhuian and others filed a petition against the State of Bihar. The judgment was handed down on 20 November 1962 by the Supreme Court of India. The bench consisted of Justice Syed Jaffer Imam, Justice N. Rajagopala Ayyangar and Justice J.R. Mudholkar. The case is reported in 1963 AIR 1120 and 1963 SCR Supl. (2) 328, with citation references R 1963 SC1850 (33) and R 1989 SC 129 (9). The matter involved provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), as amended by the Criminal Procedure Code (Amendment) Act, 1955 (XXVI of 1955), specifically sections 537(b), 233‑239 and 4(c). The issue before the Court related to the meaning of “mis‑joinder of charges” under section 537(b) of the Code.

The factual background described a Sub‑Inspector of Police who arrested between ten and fifteen persons engaged in gambling by the side of a road. Five of those persons were taken to a police out‑post, where one arrested individual displayed violent behaviour, resisted handcuffing and began to abuse the Sub‑Inspector. A crowd of Bhuians was dancing near the out‑post; on hearing the disturbance, some of them rushed with lathis, assaulted the Sub‑Inspector and two constables, and looted the out‑post. Three charge‑sheets were lodged in the court of the Sub‑Divisional Officer for offences under several sections of the Penal Code and under section II of the Bengal Public Gambling Act. After taking cognizance, the Sub‑Divisional Officer transferred the matters to the Court of the First‑Class Magistrate, which conducted a joint trial on a petition filed by the prosecuting inspector. The magistrate convicted and sentenced the accused under various provisions. The appellants appealed to the Additional Judicial Commissioner of Ranchi, who held that the offence under section II of the Bengal Public Gambling Act was not committed in the same transaction as the other offences at the police post, constituting a mis‑joinder of charges; however, the Commissioner observed that the defect was curable because no prejudice was caused. The appellants then filed a revision petition in the High Court, which dismissed the petition. Before the Supreme Court, the appellants argued that the term “mis‑joinder of charges” in section 537(b) should be limited to mis‑joinder of accusations, and that a joint trial of offences and persons outside the scope of sections 233‑239 of the Code would not fall within that expression. The Court held that, following the 1955 amendment Act XXVI, there is no scope to contend that a mis‑joinder of charges is excluded from section 537 of the Code when it has not caused a failure of justice. The amendment expressly included mis‑joinder of charges among the errors and irregularities that can be cured under the provision.

The Court mentioned several earlier authorities, namely Ayyar v King Emperor (1902) 1 L.R. 25 Mad. 61, Abdul Rehman v King Emperor (1927) I.L.R. 5 Rangoon 53, Babu Lal Choukhani v Emperor (1938) I.L.R. 2 Cal. 295, Pulukuri Kotayya v King Emperor I.L.R. 1948 Mad. 1, Janardan Reddy v State of Hyderabad [1951] S.C.R. 344 and Kadiri Kunchahammad v State of Madras A.I.R. 1960 S.C. 661. It explained that a charge is a precise formulation of a specific accusation made against a person for an offence alleged to have been committed by him. Sections 234 to 239 of the Code of Criminal Procedure permit the joinder of such charges under defined conditions so that a single trial may be conducted. Such a joinder may involve charges relating to different offences committed by the same person or by several persons. If the joinder of charges contravenes the provisions of the Code, it is termed a mis‑joinder of charges. Section 537 bars a revisional or appellate court from setting aside a finding, sentence or order of a court of competent jurisdiction on the ground of a mis‑joinder unless that mis‑joinder has caused a failure of justice. The High Court, applying this principle, held that in the present case no failure of justice had occurred and that the appellants suffered no prejudice.

The present criminal appeal, numbered 224/60, arose from the judgment and order dated 7 October 1960 of the Patna High Court in Criminal Revision 979/1958. Counsel for the appellants and counsel for the respondent were instructed. The judgment was delivered by Justice Subbarao. The appeal, filed by way of certificate, raised the question of the scope of section 537 of the Code of Criminal Procedure. The factual matrix, which was not contested, was recounted as follows: on 16 September 1956, at approximately 3:55 p.m., a Sub‑Inspector of Police attached to the Chainpur outpost observed between ten and fifteen persons gambling beside the road. He arrested five of them; the remaining individuals fled. The Sub‑Inspector escorted the arrested persons back to the outpost. One of the arrested, identified as Jamal, behaved violently; the Sub‑Inspector ordered that he be handcuffed, after which Jamal began to abuse the Sub‑Inspector. At the same time, a large group of Bhuians, both men and women, were dancing near the outpost. Hearing the disturbance, several of them rushed to the outpost armed with lathis, assaulted the Sub‑Inspector and two constables, and proceeded to loot the outpost. In response, three charge‑sheets were lodged before the Sub‑Divisional Officer. The first charge‑sheet named appellants numbered 1 to 4 and others, charging them under sections 147, 452 and 379 of the Indian Penal Code for raising the outpost, looting property and assaulting the informant. The second charge‑sheet named appellant 5 and four others, charging them under section 224 of the Indian Penal Code. The third charge‑sheet again named appellant 5, addressing additional offences.

In the case, the Sub‑Divisional Officer recorded the offences committed by the appellants and, after taking cognizance of the matters, transferred the proceedings to the Court of the First‑Class Magistrate at Daltonganj. On 29 December 1956, the magistrate, acting on a petition filed by the prosecuting inspector, ordered that all the charges be tried together and conducted a joint trial. On 22 July 1957, the magistrate delivered a single judgment. He found appellants numbered 1 to 4 guilty of an offence punishable under section 147 of the Indian Penal Code and also guilty of offences punishable under sections 452 and 380‑34 of the same Code. For the offence under section 147, he imposed a term of rigorous imprisonment of one year, while he imposed no separate sentence for the offences under sections 452 and 380‑34. The magistrate also found appellant 5, together with four other persons, guilty of an offence under section 224 of the Indian Penal Code and sentenced him to two years of rigorous imprisonment. In addition, appellant 5 and the other four individuals were convicted of an offence under section 11 of the Bengal Public Gambling Act as well as of offences under sections 353 and 380‑34 of the Indian Penal Code, but the magistrate did not award any distinct sentence for those latter offences.

The convicted persons filed an appeal against both the convictions and the sentences before the Additional Judicial Commissioner at Ranchi. By his judgment dated 10 July 1958, the Commissioner confirmed the conviction of appellants 1 to 4 under section 147 of the Indian Penal Code and acquitted them of all other charges. He upheld the conviction of appellant 5 under section 224 of the Indian Penal Code, but reduced his term of rigorous imprisonment to one year. Further, the Commissioner imposed a one‑month term of rigorous imprisonment on appellants 4 and 5 and the other persons for the offence under section 11 of the Bengal Public Gambling Act. The Commissioner observed that the offence under section 11 of the Bengal Public Gambling Act was not committed in the same transaction as the other offences, which had been committed at the police post, and therefore the charges were misjoined. Nonetheless, he held that the defect was curable because it had not caused any prejudice to the appellants.

Subsequently, the appellants filed a revision petition before the High Court at Patna. The High Court dismissed the revision on the basis of section 537(b) of the Criminal Procedure Code, holding that the conviction could not be set aside because the alleged misjoinder of charges had not resulted in a failure of justice. The present appeal was lodged against that order, supported by a certificate issued by the High Court. Counsel for the appellants argued that section 537(b) of the Criminal Procedure Code merely remedies irregularities in the framing of charges and does not cure a joint trial of charges against one person or several persons when such a trial is not authorized by the Code. Expanding on this contention, counsel submitted that the term “mis‑joinder of charges” in section 537(b) should be interpreted strictly as a mis‑joinder of accusations, and that it does not extend to the improper combination of distinct offences in a single trial.

The Court explained that the term “mis‑joinder of charges” refers only to the improper joining of accusations. Consequently, a joint trial that includes offences or persons falling outside the range covered by sections 233 to 239 of the Criminal Procedure Code does not constitute a mis‑joinder within the meaning of the expression. Because the dispute centered on the interpretation of Section 537 of the Criminal Procedure Code, the Court found it useful to set out the relevant portion of that provision. It reads: “Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account of (a) any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code; or (b) any error, omission or irregularity in the charge, including any mis‑joinder of charges; or (c) …; or (d) any misdirection in any charge to a jury, unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice. Explanation: In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall consider whether the objection could and should have been raised at an earlier stage in the proceedings.” The Court noted that Clause (b) was inserted by Act XXVI of 1955, that the word “charge” was omitted from Clause (a) and placed in a new clause specifically dealing with charges, and that the phrase “mis‑joinder of charges” was added to the general category of “error, omission or irregularity in the charge.” The purpose of the section, the Court observed, is clear from its language: procedural rules aim to secure a fair trial and the dispensation of justice, and therefore a violation of a procedural requirement that does not result in a failure of justice does not render the trial void.

The Court further clarified the scope of Clause (b) by referring to the historical background that prompted the amendment. It cited the judgment of the Judicial Committee in Subrahmania Ayyar v. King Emperor, where the Committee held that disregarding an explicit statutory provision concerning the mode of trial was not a mere irregularity that could be cured under Section 537. In that case, the trial had been conducted in violation of sections 233 and 234 of the Criminal Procedure Code, which mandate that each distinct offence be charged and tried separately, except that up to three offences of the same kind may be tried together in one charge if they occur within a one‑year period. The Judicial Committee concluded that the mis‑joinder of charges in that circumstance was not an irregularity but an illegality, and consequently the trial, being conducted in a manner expressly prohibited by law, was deemed wholly illegal. The Court emphasized that this historical illustration demonstrated that where the mis‑joinder of charges amounts to a breach of substantive procedural provisions, the error is not merely curable under Section 537; instead, it invalidates the trial because it constitutes an illegal departure from the statute‑prescribed method of prosecution.

In the case of Abdul Rehman v. The King Emperor (2), the Privy Council examined a breach of section 360 of the Criminal Procedure Code, which requires that a deposition be read over to a witness before the witness signs it. The Court held that such a breach constituted merely an irregularity, and that the irregularity could be cured under section 537 of the Code. Referring to the earlier decision in Subrahmania Ayyar v. King Emperor, the Board pointed out that the procedure condemned in that case was expressly prohibited by the Code and that such a breach could potentially cause actual injustice to the accused.

The issue resurfaced before the Privy Council in Babu Lal Choukhani v. Emperor (1). One of the matters raised was whether the trial had been conducted in contravention of section 239(d) of the Criminal Procedure Code. The Board answered that there was no such infringement. The Court then considered the hypothetical question of whether, had there been a breach of section 239(d), the case would be governed by the principles laid down in Subrahmania Ayyar’s case or by those in Abdul Rehman’s case. The Board deemed it unnecessary to analyse the precise scope of the Subrahmania Ayyar decision because, in the Board’s view, the question of section 239(d) did not arise in that earlier case.

The same point was later revisited by the Board in Pulukuri Kotayya v. King Emperor (2). In that matter, the proviso to section 162 of the Code had been breached. The Board observed that, given the surrounding circumstances, the breach did not prejudice the accused, and consequently the trial was saved by the remedial provision of section 537.

Sir John Beaumont, speaking for the Board, explained at page 12 that when a trial is conducted in a manner that is wholly different from that prescribed by the Code—as occurred in Subrahmania Ayyar v. King Emperor (3)—the trial is fundamentally defective and no remedy of curing an irregularity is available. However, if a trial proceeds substantially in accordance with the Code but a minor irregularity occurs during the process, that irregularity may be cured under section 537, even though the irregularity typically involves a breach of one or more comprehensive provisions of the Code. He further noted that many Indian decisions distinguish between an illegality and an irregularity on the basis of degree rather than on a categorical difference.

From these observations, it is clear that the Judicial Committee left it to the courts of each case to determine whether a breach of a Code provision amounts to an illegality or merely an irregularity. Indian courts have expressed divergent views on whether later Privy Council decisions relaxed the strict rule established in Subrahmania Ayyar’s case, indicating a marked split of opinion on the issue.

Several decisions have expressed the view that a simple misjoinder of charges does not automatically invalidate a trial unless it results in a failure of justice, whereas other decisions have adopted the opposite position. The Court, in Janardan Reddy v. The State of Hyderabad (1), left the question open for future adjudication. In the intervening period, Parliament resolved the uncertainty by enacting Act XXVI of 1955, which introduced a distinct provision dealing with errors, omissions or irregularities in a charge and broadened the definition of “such errors etc.” to expressly include a misjoinder of charges. Consequently, after this amendment there is no longer any scope for arguing that a mis‑joinder of charges is not saved by section 537 of the Criminal Procedure Code unless it has caused a failure of justice. The next issue to consider is the meaning of the word “charges” in the phrase “misjoinder of charges.” Counsel for the appellants argued that “charge” should be understood only as an accusation of a crime or an information presented by the Court concerning an allegation against the accused, and therefore the section would save only irregularities relating to the mis‑joinder of such accusations. They further contended that the provision applied solely to the mixing up of accusations of offences or persons whose joinder is permitted by the provisions of the Code. An illustration of the kind of misjoinder that the section is intended to cure is found in Kadiri Kunhahammad v. The State of Madras (2). In that case, a separate charge was framed in violation of the proviso to section 222 of the Code concerning an amount misappropriated over a period exceeding one year. The Court held that because acts of misappropriation occurring in the same transaction could be tried together, the breach of section 222 was merely an irregularity; the misappropriation could have been split into two parts, each covering a period of less than one year, and charged separately. Accordingly, section 537 preserved the trial since there was no failure of justice. The trial was permissible under the Code, and the defect lay only in having a single charge instead of two. The question thus arises whether the expression “misjoinder of charges” should be confined to this narrow meaning. Section 4(c) defines “charge” and states that a charge includes any head of charge where more than one head is contained; this definition is inclusive but does not resolve the issue. Chapter XIX of the Code prescribes the form of charges and the rules for joinder, while sections 221 to 232 enumerate the particulars that a charge must contain.

In this passage the Court explained that a charge must contain the particulars required by law and described how any defect in a charge may be rectified. Section 221 mandates that each charge must state the offence with which the accused is charged. Section 222 further requires that the charge include such details as the time and place of the alleged offence and the identity of the person or thing against which it was committed, so that the accused receives reasonable notice of the matter he is charged with. Section 233 reiterates that a charge must contain the particulars specified in Sections 221 and 222. The form of a charge prescribed in Schedule 5 demonstrates that a charge is an accusation that a particular person committed a specific offence. Consequently, a charge is not a vague or abstract allegation; it is a concrete accusation directed at an individual for an act or omission that violates a penal law. In other words, a charge is an accusation against a person of an offence that is alleged to have been committed by him. Having defined a charge, the Court turned to Sections 234 to 239, which govern the joinder of such charges. Section 233 provides that for every distinct offence of which a person is accused, there must be a separate charge and that each such charge must be tried separately, except in the situations described in Sections 234, 235, 236 and 239. Sections 234 to 236 allow the joinder of charges and the trial of different offences against a single accused when the conditions laid down in those sections are satisfied, while Section 239 permits the joinder of charges and the trial of several persons. The scheme of these provisions indicates that a charge is a tangible accusation against a person for an offence and that its joinder is permissible only under the specific circumstances enumerated, whether the joinder involves charges against one person or against different persons. If a joinder is made in violation of these provisions, it constitutes a misjoinder of charges. The Court noted that before sub‑section (b) was added to Section 537 of the Criminal Procedure Code, there was a dispute as to whether such a misjoinder was merely an irregularity that could be cured under that section or an illegality rendering the trial void. The amendment resolved this dispute by expressly classifying the misjoinder of charges as one of the errors and irregularities that could be remedied under Section 537. To summarise, a charge is a precise formulation of a specific accusation made against a person of an offence alleged to have been committed by him. Sections 234 to 239 permit the joinder of such charges under defined conditions for the purpose of a single trial. Such joinder may involve charges relating to different offences committed by a single individual or by several individuals. If the joinder of charges contravenes the statutory provisions, it is deemed a misjoinder.

In the judgment the Court observed that where the provisions of the Code are violated by joining charges that should not be joined, such a joinder constitutes a mis‑joinder of charges. Section 537 of the Criminal Procedure Code was then explained to bar a revisional or appellate court from overturning a finding, sentence or order of a court of competent jurisdiction merely because a mis‑joinder of charges existed, unless that mis‑joinder had caused a failure of justice. The Court noted that the facts of the present case demonstrated a clear mis‑joinder of charges because several persons had been charged together in a manner prohibited by the Code. Nevertheless, the High Court had examined the circumstances and concluded that no failure of justice had resulted from that mis‑joinder; it held that the accused persons had been given an adequate opportunity to present their case and that they had not suffered any prejudice. After reviewing the High Court’s reasoning, the Court affirmed that the High Court was correct in refusing to set aside the convictions and the sentences imposed on the accused. Consequently, the Court dismissed the appeal, holding that the appeal failed and ordering its dismissal.