JUDGMENT Cunliffe, J. - The Petitioners before the Court are accused persons in what has now come to be known as the Gariahat Excise Raid case. They obtained Rules nisi from a Bench of this Court consisting of my learned brothers S. K. Ghose and Henderson, JJ. They are before the Court now for the purpose of having decided the question whether these Rules nisi should be discharged or whether these Rules should be made absolute in their favour. As I understand it, certain of the Petitioners, a minority, received their Rules on the ground partly that there was no evidence or no evidence worth the name to connect them with the charges brought against them. Further, all the Petitioners have obtained the Rules on the technical point of legal procedure that in the charges framed against them by the learned Magistrate there has been a substantial misjoinder. Now for some months the Petitioners, as I understand, have been on their trial before a Special Magistrate at Alipur accused of extensive frauds and conspiracy to commit frauds against the revenue and the public. These frauds, so the prosecution say, are connected with the illicit manufacture and sale of liquor, and if the prosecution case is to be believed, the criminal conspiracy in which they are said to have been engaged is of a very important kind and characterised by exceptional and cynical ingenuity. 2. It will perhaps be convenient if I deal first with this question of the Rules granted in the case of the minority Petitioners in that it is argued that there is no prima facie case against them to warrant any charge at all. Now, to my mind, it seems perfectly proper that at this stage of the trial the consideration and opinion of an Appellate Court should be invoked on this ground and if I were satisfied and my learned brother was satisfied that there was no evidence to support the charges against the persons concerned who are said to carry on business mainly in a far-off province across the Bay of Bengal, then I should not hesitate to make the Rules absolute in their favour. I am, however, not so satisfied, having heard the arguments on their behalf from learned Counsel and I do not consider it would be proper from a judicial point of view, bearing in mind the interests of the accused, who have only reached a half-way stage in their trial, that I should indicate what I consider is the value of the evidence which has already been led for the prosecution concerning them. Here perhaps I should say that it was agreed between learned Counsel who have appeared before us that the exact stage of case reached in the Magistrate's Court is that the prosecution have examined their witnesses, that the defence have reserved their cross-examination and naturally, of course, there has been no re-examination of the witnesses for the prosecution. It was then that it became the learned Magistrate's duty to frame the charges. This leads me to the universal ground of the Rules, to which I have already referred, as having been obtained by all the Petitioners, to wit, the question of misjoinder. 3. During the course of the argument at Bar, I suggested that this Court of Appeal was placed in an invidious position, having regard to the recourse that had been had to it, asking for a decision on this misjoinder point. I endeavored to indicate that the question of misjoinder was based upon a criticism of the evidence before the Court which it was said did not show that the Petitioners, one and all, were engaged in a comprehensive conspiracy which included the various overt acts which are referred to in the charges framed. I said and I still think that such a question is a mixed one of law and fact and that it is always difficult for a Court to make up its mind finally on a question inolving fact, unless the whole of the evidence in its completed form is before the Court, so that it is in full possession of the materials upon which it should come to a conclusion. 4. 4. I was told that the reason the visit was made to this Court at that stage was because of certain observations made by another Court of Appeal in a recently disposed of case, known as the Electricity Theft case, where one of the members of the Court is said to have remarked to Counsel that a certain technical point, closely resembling this misjoinder point which was being put before the Court, ought to have been decided by the regular Court of Criminal Appeal, just as it is sought to obtain a decision of this Court whilst the Excise case is still unfinished. 5. I had the opportunity of speaking after the Court rose yesterday to my learned brother who was said to have been responsible for this remark. He indicated to me that he had no, recollection of saying any such thing, but that if he did he certainly did not intend that it should be taken in such a conclusive sense. 6. In arguing this question of a possible misjoinder, it was sought, to canvass the evidence given by the prosecution before the learned Magistrate and then when the Court informed Counsel that such a course did not commend itself the learned Counsel fell back on the actual framing of the charges as they are officially before us now. They take the form of the first charge being a charge of general conspiracy to defraud and the remaining, fourteen charges I think they are, consist of overt acts made, so it is said, in pursuance of the first charge of general conspiracy. On the face of those charges and apart from entering into the merits of the evidence, I am quite unable to say that they are improperly framed or that they can be successfully criticised on the ground of misjoinder. It is said that the illegal acts, such as are set out in the charges, could not possibly form the " one transaction " which is the expression used in sees. 235 and 239 of the Code. The expression " transaction," what it exactly means and what it connotes, has been the subject of numerous decisions; but I am not prepared to say that on the face of these charges as drafted, it seems to me it cannot be put forward as an inappropriate phrase. 7. 235 and 239 of the Code. The expression " transaction," what it exactly means and what it connotes, has been the subject of numerous decisions; but I am not prepared to say that on the face of these charges as drafted, it seems to me it cannot be put forward as an inappropriate phrase. 7. The right of recourse to an Appellate Court during pending proceedings in a lower Criminal Court is, I have no doubt whatever, the statutory embodiment in British India of the Old Common Law Prerogative Writs of the Crown, the employment of which was at one time exceedingly frequent in England but which are gradually falling into disuse in that country, as they are used less and less. The primary object of these writs, again I have no doubt, was to deal with a position when a subject or a number of persons were brought before a Court as victims of some movement on the part of the executive which could not be defended in a Court of Law: and whilst no doubt in this country the revisionary powers of a Court of Appeal have been frequently used to rectify the mistakes of inexperienced members of the lower judiciary, in my own short experience the necessity for calling them into play seems to me to be growing less and less every year. 8. A Chief Justice of this Court, Sir Lawrence Jenkins, once said that he considered that the real ground for exercising this revisionary power was when it was urgently necessary in the interests of justice. In my opinion, it is not urgently necessary in the interests of justice that apart from the merits, we should interfere here. And I should also like to say this, that if we had chosen to give our reasons after hearing a lengthy argument based upon criticism of a meticulous character of the prosecution evidence, we might very well have prejudiced the accused persons in the latter part of their trial and prejudiced them still further in the Court of Appeal to which they may eventually come by setting up a principle of res judicata as to what may eventually turn out to be a valuable factor in their arguments on appeal. 9. 9. I am anxious that the Petitioners in this what I regard as a somewhat unnecessary application to this Court should not leave under the impression that beyond our saying that we are not satisfied that we should interfere here, we do not indicate in any way to the trying Magistrate our opinion concerning the value of the prosecution evidence or of the manner in which he has framed his charges or conducted the trial so far as it has gone. 10. For these reasons, I direct that all the Rules nisi before the Court shall be discharged. Henderson, J. 11. In his opening Mr. Noad indicated that his client is only here owing to circumstances to which my learned brother has just referred. Now, in my opinion it is necessary to distinguish between cases of alleged prejudice and cases of alleged want of jurisdiction. When a convicted person appears in an Appellate or revisional Court and asks for interference on the ground that he was prejudiced by the procedure, an important point, always is whether the objection was taken at the earliest opportunity. In the present case it undoubtedly was. Speaking for myself I feel very doubtful whether, when an accused person does take an objection at the earliest possible moment, he can be debarred from raising it subsequently in a Court of Appeal or revision merely because he did not come up straightway to this Court. 12. The present case is really even stronger, because the objection, if valid, goes to the root of the jurisdiction. There is ample authority for the proposition that an objection with regard to the legality of a trial can be taken in a Court of revision or appeal, even though it was never taken in the Court of first instance at all. 13. The position taken by Sir Oscar's clients is different and one that I can well appreciate. It is contended on their behalf that this trial, even in reaching its present early stage, has taken months and will undoubtedly go on for months more. It is, therefore, contended that these persons will be in an intolerable position if in the end the Court of Appeal decides that there has been a misjoinder of charges or of persons and the whole thing has to be done all over again. It is, therefore, contended that these persons will be in an intolerable position if in the end the Court of Appeal decides that there has been a misjoinder of charges or of persons and the whole thing has to be done all over again. In my opinion in such a case an accused person is perfectly entitled to ask that that question should be decided as early as possible. 14. Now, the point with regard to the alleged misjoinder appears to me to be not of much difficulty. It was made abundantly clear to us by the learned Government Counsel that the prosecution case is that all these persons are guilty of a conspiracy to commit offences with regard to' liquor upon which duty had not been paid and that this conspiracy is the subject-matter of the first charge which has been drawn against all the accused persons. It may be that it is not very happily worded. But if it does not make plain to the accused persons what the Crown case as explained by the Government Counsel actually is, that is a matter which can be easily remedied in the Magistrate's Court. Now it was contended on behalf of some of the Petitioners at any rate that this is not a case of one conspiracy as alleged, but several minor and independent conspiracies. Now for reasons which have been given by my learned brother, I must absolutely decline to examine the evidence and to say whether, in my opinion, there really was one conspiracy or whether there were several independent conspiracies. To ask us to do that when the witnesses have not been cross-examined is to ask us to perform an impossible task. But what we are really concerned with is to see whether there is any evidence at all which would justify the framing of this charge; and if there was such evidence, then undoubtedly all the accused persons can be tried together for one offence. On the other hand, if there is no such evidence, a joint trial would be illegal and the proceedings against some of the Petitioners would have to be quashed on the ground that there were no materials to support a charge against them. I agree with my learned brother that there is evidence upon which such a charge could be framed. I agree with my learned brother that there is evidence upon which such a charge could be framed. It may be that the prosecution will entirely fail to establish it. But that is neither here nor there. There were materials before the Magistrate which would justify him in framing such a charge: Thus there is nothing illegal in the joint trial of the accused persons. 15. Now, the second point with regard to misjoinder was this that the main charge of conspiracy and the subsequent minor charges cannot be tried together. In my opinion, that question is settled by the decision of this Court in Amritalal Hazra's case 19 C.W.N. 676 (1915) and. further, that is, in my opinion, a decision which is really in the interest of both sides. I cannot imagine what advantage would accrue to any body if we were to direct the Magistrate to proceed to try the accused persons on the first charge and then, having done that, to do it all over again and try them on the various other charges largely on the same evidence. That would result in nothing but harassment and waste of public time and money. On the other point, I merely desire to say that I agree with my learned brother that there is some evidence on which all the accused persons can be put on their trial; and it is impossible for us to say that Rule No. 1113, for example, ought to be made absolute on the ground that there was no evidence against the Petitioner at all. For these reasons, I agree that these Rules must be discharged.