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1937 (6) TMI 13 - HC - Indian Laws

Issues Involved:
1. Misjoinder of charges
2. Applicability of Section 537 of the Code of Criminal Procedure
3. Validity of the jury's verdict
4. Power of the appellate court to order a retrial

Detailed Analysis:

1. Misjoinder of Charges:
The appellant was charged with murder, robbery, and cheating. The main prosecution case was that the appellant, a servant, murdered his employer's wife and stole her ornaments. He was also accused of cheating by masquerading as a Brahmin to secure employment. The court found a glaring misjoinder of charges, as the appellant could not be tried for cheating, murder, and robbery together. The prosecution argued that this misjoinder was cured by Section 537 of the Code of Criminal Procedure, which was rejected by the court, citing the binding authority of Subrahmania Ayyar v. King-Emperor. The court concluded that the entire trial was illegal due to this misjoinder.

2. Applicability of Section 537 of the Code of Criminal Procedure:
The court examined whether Section 537, which cures procedural irregularities, could apply to the misjoinder of charges. The court distinguished between irregularities during a regular trial and an entirely illegal trial from start to finish. The court cited Subrahmania Ayyar v. King-Emperor and subsequent cases to assert that Section 537 could not cure the fundamental illegality of the trial. The court emphasized that the misjoinder of charges was a substantive defect that could not be remedied by Section 537.

3. Validity of the Jury's Verdict:
The jury found the appellant guilty under Section 304 (Part I) and Section 381 of the Indian Penal Code, indicating that the killing did not amount to murder and the theft was dissociated from it. The court found this verdict astonishing and perverse, noting that the learned judge improperly introduced the exception of grave and sudden provocation based solely on the appellant's statement, which lacked evidentiary support. The court held that the jury's verdict was unjustified and influenced by misdirection.

4. Power of the Appellate Court to Order a Retrial:
The court addressed whether it could order a retrial despite the appellant's acquittal on some charges by the jury. The court referred to previous decisions supporting the Crown's position that a retrial could be ordered. The court disagreed with the contrary view expressed by Lort-Williams J. in Abdul Khan v. Emperor, which held that an appellate court could not order a retrial for charges on which the appellant was acquitted. The court concluded that Section 423 of the Code of Criminal Procedure allowed for a retrial on all charges once the conviction and sentence were set aside. The court emphasized that the appellate process was a continuation of the trial, not a separate proceeding.

Conclusion:
The court allowed the appeal, set aside the conviction and sentences, and directed a retrial by the Sessions Judge on charges of murder and robbery. The appellant was also to be retried on a charge of cheating by a Magistrate of the First Class if deemed necessary. The appellant was to be detained as an undertrial prisoner pending the retrial decision. The court reaffirmed that misjoinder of charges vitiated the trial and could not be cured by Section 537, and that the appellate court had the power to order a retrial on all charges.

 

 

 

 

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