S.N. Sahai, J.
1. This revision has come up before us on reference by a learned single Judge of this Court. The point referred to us is that whether a mis-joinder of accused in a trial was an illegality and has to be set aside irrespective of the provisions o Section 537, Cr. P. C. The present revision has been directed against the order of a Magistrate of 1st Class of Shahjahanpur convicting both the applicants for an offence punishable under Section 19 (f) of the Arms Act and sentencing each of them to undergo rigorous imprisonment for a period of nine months. On appeal their conviction and sentence was maintained by the learned Sessions Judge. Aggrieved by the order passed by the court below both the applicants have come up in revision to this court.
2. The facts are that on search being made of a house jointly occupied by the two applicants the Station Officer Raafat Ali recovered a 12-bore country-made pistol with lour live cartridges from a box which was locked and the key of which was in possession of Ahmad Husain, whereas another countrymade pistol was recovered from another box which was also kept in the same room and locked and the key of which was given by the other applicant Mohammad Husain. On these facts the lower courts held that the applicants were in possession of unlicensed fire arms and they had committed an offence punishable under Section 19 (f), Arms Act. It would appear from the referring order of the learned single Judge that the only point that was argued before him was that on the admitted facts of the case the joint trial of the two applicants was not justified by any provision of the Criminal Procedure Code and the conviction and sentence passed upon each of them could not be legally maintained.
It is manifest that the provisions of Section 239 (a) of the Code of Criminal Procedure do not apply to the facts of the present case. There was no allegation and there could be none that the offences by both the applicants were committed in one and the same transaction. All that had happened wag that in the course of one single search the commission of these two offences by both the applicants was discovered. The argument on behalf of the applicants was that the entire trial was totally vitiated for non-compliance with the provisions of Section 233 of the Code of Criminal Procedure which runs as follows:
'For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239'.
The reply on behalf of the State is that it was merely an irregularity which could not vitiate the trial and the defect, if any, was cured by the provisions of Section 537 of the Code of Criminal Procedure (as amended by the Criminal procedure Code (Amendment) Act XXVI of 1955). On behalf of the applicants before the learned single Judge, two single Judge decisions of this Court were cited in which the view was taken that misjoinder of accused in a trial was an illegality and the trial had to be set aside irrespective of the provisions of Section 537, Cr. P. C. The first case was of Sewak v. Emperor : AIR1928All417 . The facts of this case were that Sewak & Sumer were jointly tried for an offence under Section 216 of the Indian Penal Code. Sumer was charged with harbouring two absconding offenders Lallu and Nepal, and Sewak with the same offence with respect to two different persons, Sobha and Ram Nath. Relying on the provisions of Section 233 of the Code of Criminal Procedure that there will be separate charges for distinct offences except in the cases mentioned in sections 234, 235, 236 and 239, Dalai J., held that the joint trial of Sumer and Sewak was not an irregularity in the framing of a change but went further and covered an irregularity in a trial which was prohibited by law. He further held that the disobedience to an express provision of the law could not be considered a mere irregularity. The other case was of Abdul Aziz v. Rex AIR, 1950 All 364 (B). In this case one Abdul Aziz had been convicted and sentenced for an offence punishable under Section 9 of the Opium Act. It would appear that Abdul Aziz and one Asghar Ali were found in possession of one seer, 4 chhataks and 1 sr. 12 chhataks, respectively, of crude opium at the entrance of an opium smoking den. Both of them were arrested on the spot and were prosecuted under Section 9 of the Opium Act. The only point that was urged before Bind Basni prasad, J. who heard that revision, was that the trial of Abdul Aziz along with Asghar Ali was illegal.
He, relying upon the decision in the case of Subrahmania Ayyar v. King-Emperor, ILR 25 Mad 61 (C) and the decision of this Court in : AIR1928All417 (1) ) (A) already referred to by us above, came to the conclusion that the joint trial was vitiated and the defect could not be cured by the provisions of Section 537, Cr. P. C. The aforesaid two decisions of this Court and certain decisions of other High Courts which have taken a contrary view contrary to that of this Court in aforesaid cases namely, the Calcutta High Court in Sanyashi Gain v. Emperor : AIR1937Cal269 and Rash Behari Shaw v. Emperor : AIR1936Cal753 and the Madras High Court in Moongan v. Mir Roshan Ali Sahib AIR 1941 Mad 910 (P), necessitated the reference of this case to a larger Bench.
3. The only point which is before us for consideration is that where the mandatory provisions of Section 239, Cr. P. C. had admittedly not been followed, whether it was an illegality and the trial was completely vitiated or it was a mere irregularity which could be cured by the provisions of Section 537, Cr. P. C. Section 239 provides for the trial of different persons in One trial under certain circumstances, one of them being that the transaction was one and the same. Admittedly it is not the prosecution case that the offence committed by the two applicants was in one and the same transaction. The amended Section 537 of the Code of Criminal Procedure runs as follows:
'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-
'(a) of 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) of any error, omission or irregularity in the charge, including any misjoinder of charges, or
(c) of the omission to revise any list of jurors in accordance with Section 324, or
(d) of any misdirection in any charge to a Jury unless such error, omission, irregularity, or misdirection has in fact occasioned a failure of justice'.
Sub-clause (b) expressly provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on an appeal or revision on account of any error, omission or irregularity in the charge, including any misjoinder of charges. A comparison of the present Section 537 and as it stood prior to the amendment would show that Clause (b) has been newly added. The two decisions of this Court referred above were prior to this amendment which has widened the scope of Section 537, Cr. P. C. It has been argued before us that 'mis-joinder of charges included only misjoinder of offences and not misjoinder of accused persons. This point came up for decision before one of us in the case of Ram Kishan v. State : AIR1956All462 it was held that
'it cannot be said that Section 537 is applicable only to misjoinder of offences and not to misjoinder of tooth offences and accused persons. The words used in Section 537 are not misjoinder of offences or accused persons. They are misjoinder of charges. The words clearly include misjoinder of offences or of accused persons.'
We are in complete accord with the view taken in the above-mentioned case and see no reason to take a different view.
4. Then it has been argued that the failure of the trial court to try each of the applicants separately has caused a failure of justice. The lower appellate court held that no prejudice was caused to the applicants as a result of the joint trial. This finding of fact appears to be correct, because, though witnesses were common the statements of the witnesses were clear and showed that each applicant was in possession of firearms without licence, inasmuch as a firearm was recovered in each case from a locked box of which the key was in possession of each of the applicants. In our opinion the joint trial of the two applicants has not occasioned any failure of justice. We are further of opinion that the decisions reported in the case of 1928-26 : AIR1928All417 and the case of AIR 1950 All 364 (B) are no longer good law in view of the amendment of Section 537, Cr. P. C. by Act XXVI of 1955. The amended Section 537, Cr. P. C. will apply to the present case as Clause (d) of Section 116 of the Act expressly provides that
'the provisions of this Act and the amendments made thereby shall apply to all proceedings instituted after the commencement of this Act and also to all proceedings pending in any criminal court on the date of such commencement'.
We have come to the conclusion that any irregularity in the trial of the applicants has been cured by Clause (b) of Section 537 of the Code of Criminal Procedure.
5. On merits of the case also we are of opinion that both the courts below were right in taking the view that the guilt has been brought home to each, of the applicants. There are no merits in this revision and it is accordingly dismissed. The conviction and sentences of both the applicants are maintained. The applicants are on bail. They shall be taken in custody forthwith in order to serve out their sentences.