AHMAD HUSSAIN Vs. STATE

JUDGEMENT

(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:

(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: