JUDGMENT Henderson, J. - This is an appeal from the jail. It was admitted by our learned brother Mr. Justice Mitter and myself and we directed that notice to appear should be given to the Crown. We have accordingly heard the learned Deputy Legal Remembrancer on behalf of the Crown, but unfortunately we have not had the advantage of any argument on behalf of the Appellant. The Appellant was charged with murder, robbery and cheating. The main facts on which the prosecution relied are as follows: according to them the case was one of murder for gain. The Appellant was a servant of one Naresh Chandra Chatterji under whom he worked as a cook and a peon. On the 2nd September this gentleman, who is a Supervisor working under the Nadia Central Co-operative Bank, had to go to Krishnagar on business. He returned by an evening train which arrived at about 10 or 10-30 P.M. When he reached his home he found his wife lying dead in the kitchen and her ornaments and the accused had disappeared. It is thus not surprising that the prosecution put forward the case as one of murder for gain. The complainant immediately got in touch with the police and owing to action taken by them, the Appellant was arrested by the Assistant Station Master at Aranghata Station, with the stolen ornaments upon his person. The charge of cheating was based upon an incident which had taken place about a year previously when, it is said, the Appellant, who is a Mohammedan, induced the complainant to take him into his service as a cook by masquerading as a Brahmin. The jury brought in what we can only regard as the astonishing verdict of guilty under sec. 304, Part I and sec. 381, that is to say, they found that the killing of this unfortunate woman did not amount to murder and that the theft of the ornaments was entirely dissociated from it. 2. It appears that the learned Judge was himself in some way responsible for the verdict of guilty of culpable homicide. It is plain from a rider in the verdict that the jury found the necessary intention to make out a case of murder. The learned Judge in his charge put before them the first exception, that is to say, grave and sudden provocation. It is plain from a rider in the verdict that the jury found the necessary intention to make out a case of murder. The learned Judge in his charge put before them the first exception, that is to say, grave and sudden provocation. There is nothing in the evidence given by any of the witnesses to support such a case and it appears to be based solely upon a statement that was made by the accused himself. When brought before the Magistrate he gave as the reason for his desire to make a statement that he was feeling repentant. It is, however, only necessary to read his statement to see that it is, as far as it possibly could be, an exculpatory statement. It is quite true that it contains what would amount to a confession of theft: but inasmuch as the stolen ornaments were aft found on the person of the Appellant by the Assistant Station Master, it would not be of much use for him to deny the theft. So far as the death of the woman is concerned, if his statement is to be believed, he was guilty of neither murder nor culpable homicide. There is, therefore, really nothing in the record to justify this particular verdict. What the Appellant said was this: " Naresh Babu's wife told me you need not grind the spices." " At that time I finished grinding spices. She was annoyed for the grinding of the spices. Bye and bye she told me ' this is not the place where the work should be done according to one's own wish. Go away from this place.' I said 1 Very well, when you bid me go away at once, I am going away. Pay off my dues.' I was then standing on the door of the kitchen. Naresh Babu's wife was cooking then. Naresh Babu's wife said to me 'a cook of your type should be paid nothing instead of salary. You argue with your master.' Saying this she pushed me and said ' go away from the kitchen.' Then I was much enraged and aggrieved. I caught hold of Naresh Babu's wife by pressing her throat. When I pressed her throat by the right hand, she exclaimed 'you thakur' uttering this she fell down. Immediately after she fell down, her tongue was found to come out at once. I caught hold of Naresh Babu's wife by pressing her throat. When I pressed her throat by the right hand, she exclaimed 'you thakur' uttering this she fell down. Immediately after she fell down, her tongue was found to come out at once. There was water in the bucket of the kitchen and I applied some water on her face. The hands and feet of Naresh Babu's wife were moving up and down and Were trembling. I then thought that she might have an attack of fit. Formerely Naresh Babu's wife had attacks of fit now and then. At the time of severe anger formerly also she had such fits." 3. The case of grave and sudden provocation is based upon this story told by the accused himself. I am bound to say that in our opinion it is not a very probable story: but even if it is accepted, it passes our comprehension how any jury could regard such an incident as grave provocation. The verdict on this point was, in our opinion, wholly perverse and the learned Judge ought not to have put the exception to the jury at all. 4. The appeal was admitted on account of the very glaring misjoinder of charges. The Appellant could not possibly be tried together for the alleged cheating at the time when he obtained his service and the murder and robbery. 5. On behalf of the Crown the Deputy Legal Remembrancer urged that this misjoinder has been cured by sec. 537 of the Code of Criminal Procedure. That section provides that no sentence shall be set aside because of something irregular in the proceedings unless prejudice has been caused to the accused. To my mind by its very terms the section appears to refer to something irregular which took place at a regular trial. Here we have exactly the opposite. There was nothing irregular in any of the proceedings in the course of the trial. The whole thing was illegal from start to finish. The well known case of Subrahmania Ayyar v. King-Emperor L. R. 28 I. A. 257: s. c. I. L. R. 25 Mad. 61; 5 C. W. N. 866 (1901), is clearly in point and is a binding authority. 6. We were asked to say, however, that the effect of that decision has really been modified by two subsequent decisions. The well known case of Subrahmania Ayyar v. King-Emperor L. R. 28 I. A. 257: s. c. I. L. R. 25 Mad. 61; 5 C. W. N. 866 (1901), is clearly in point and is a binding authority. 6. We were asked to say, however, that the effect of that decision has really been modified by two subsequent decisions. The first is the case of Abdul Rahaman v. The King-Emperor L. R. 54 I. A. 96: s. c. I. L. R. 5 Rang. 53; 31 C. W. N. 271 (1926). That also was a decision of their Lordships of the Judicial Committee who dealt with the effect of a failure to comply with the provisions of sec. 340 of the Code of Criminal Procedure. The point raised, therefore, was concerned with an irregularity which took place at a proper trial. In giving their decision whether sec. 537 applied their Lordships, so far from dissenting from the decision in Subrahmania Ayyar's case L. R. 28 I. A. 257: s. c. I. L. R. 25 Mad. 61; 5 C. W. N. 866 (1901), in effect, affirmed it and distinguished it. 7. The second case is the case of Emperor v. Erman Ali I. L. R. 57 Cal. 1228 : s. c. 34 C. W. N. 296 (F. B.) (1930). That way a decision by a Full Bench of this Court. The accused persons had been tried by a Judge and a Jury of nine persons, which is the tribunal prescribed for such trials by the Code. It was, however, alleged that there had been something irregular in the way in which the jury had been selected. Here again the decision in Subrahmania Ayyar's case L. R. 28 I. A. 257: s. c. I. L. R. 25 Mad. 61; 5 C. W. N. 866 (1901) was not dissented from. Of course it could not be by any decision of this Court. It was distinguished, and, in our respectful opinion, rightly distinguished. 8. We have, in fact, not been able to find any decision to the effect that where the proceedings in a trial are illegal from start to finish, sec. 537 can be applied to save it. Of course it could not be by any decision of this Court. It was distinguished, and, in our respectful opinion, rightly distinguished. 8. We have, in fact, not been able to find any decision to the effect that where the proceedings in a trial are illegal from start to finish, sec. 537 can be applied to save it. We therefore reach the conclusion that there ought to be a retrail in this case, and we have no doubt at all that the proper order to make would be that the Appellant should be retried for murder and robbery. 9. The next question, therefore, that the learned Deputy Legal Remembrancer argued was whether in view of his acquittal on those charges by the jury we can now order a retrial. Previous decisions were in favour of the Crown on this point. There were, however, certain observations made by Mr. Justice Lort-Williams in the case of Abdul Khan v. Emperor I. L. R. 62 Cal. 928: s. c. 39 C. W. N. 677 (1935), where he held that the Appellate Court has no power to pass such an order. Mr. Justice Jack was inclined to take the view that this opinion was correct but was not prepared to go against the previous decisions. 10. The question again came up for decision in the case of Niamuddin Biswas v. Emperor 40 C. W. N. 666 (1936). There Mr. Justice Cunliffe agreed with the opinion of Mr. Justice Lort-Williams. I myself was also inclined to take that view but left the question open, as it was not necessary for the decision of that particular case. 11. I am bound to say that now, after further consideration, I have reached the conclusion that the old decisions are correct. With great respect to Mr. Justice Lort-Williams I do not agree that sec. 403 of the Code can have any application to the case at all. The appeal is merely another stage in the trial itself. The solution of the problem depends in my opinion on the interpretation to be placed upon the words " in an appeal from a conviction " in sec. 423. Justice Lort-Williams I do not agree that sec. 403 of the Code can have any application to the case at all. The appeal is merely another stage in the trial itself. The solution of the problem depends in my opinion on the interpretation to be placed upon the words " in an appeal from a conviction " in sec. 423. Now it might be argued that in an appeal from a conviction the only matter before the Court is the charge upon which the Appellant has been convicted; but to give the words this rather artificial interpretation would unnecessarily narrow the scope of the words " order him to be retried by a Court of competent jurisdiction." It is only commonsense that, when once the conviction and sentence have been set aside and a retrial ordered, the whole matter should be reopened. On the other hand, if I were still of the same opinion, and in agreement with the decision of Mr. Justice Lort-Williams, I should hold with Mr. Justice Jack that we ought not, whatever our own personal opinion might be, to refuse to follow the earlier decisions of this Court. Whatever my own personal view might have been, I should therefore have considered it my duty to follow those previous decisions. I am fortified in so doing because my learned brother is of opinion that they were correct. 12. It is to be observed that we are merely concerned with a question of procedure. The rights of accused persons are in no way affected; for supposing that we have no jurisdiction as an Appellate Court to order a retrial of the accused person on charges of which he has been acquitted by the Court of Sessions, we have power as a Court of Revision to issue a Rule on the accused persons and upon the hearing of that Rule to set aside the order of acquittal. Such a clumsy procedure would be of no use to anybody and I now feel quite satisfied with the correctness of the earlier decisions. 13. Such a clumsy procedure would be of no use to anybody and I now feel quite satisfied with the correctness of the earlier decisions. 13. We shall, therefore, allow this appeal, set aside the convicion and sentences passed upon the Appellant and we direct that he be retried by the Sessions Judge on charges of murder and robbery and we also direct that he be retried on a charge of cheating by a Magistrate of the First Class to be appointed by the District Magistrate after his retrial by the Sessions Judge on the other charges, namely, murder and robbery, is over and if it is considered necessary. 14. The Appellant will be detained as an undertrial prisoner pending the decision on his retrial. Biswas, J. 15. The Appellant in this case was tried by the Sessions Judge of Nadia with the aid of a jury on charges under sees. 302, 394 and 419 of the Indian Penal Code. The jury unanimously found him not guilty under secs. 302 and 394, but returned a verdict of guilty under sec. 304, Part I, sec. 381 and sec. 419. Agreeing with the verdict, the learned Judge recorded an order of acquittal in respect of the charges under sees. 302 and 394, but convicted him under sees 304, Part I, 381 and 419. On a previous conviction under sec. 420, I. P. Code, being proved, he was convicted under the last two sections read with sec. 75, but no separate sentences were passed thereunder, as the learned Judge sentenced him to transportation for life under sec. 304, Part I. 16. There is no appeal by the local Government against the order of acquittal. The matter comes before us only upon appeal preferred by the accused from jail against his conviction and sentence. The appeal was admitted in chamber, and notice given to the Crown to appear. At the hearing the Crown appeared, but the accused was unrepresented. 17. There was obviously a misjoinder of charges at the trial. The prosecution case briefly is that the accused was a Mussalman, but pretending to be a Hindu Brahmin, he obtained employment as a cook under the complainant Naresh Chandra Chatterjee, who was a Supervisor under the Nadia Central Co-operative Bank with his headquarters at Bogoola. 17. There was obviously a misjoinder of charges at the trial. The prosecution case briefly is that the accused was a Mussalman, but pretending to be a Hindu Brahmin, he obtained employment as a cook under the complainant Naresh Chandra Chatterjee, who was a Supervisor under the Nadia Central Co-operative Bank with his headquarters at Bogoola. Two months later, on the 2nd September, 1936, the complainant left for Krishnagar on duty, and it is alleged that the same evening shortly before the complainant was due to return, the accused throttled the complainant's wife to death near the kitchen, and decamped with some of the ornaments she was wearing. Upon these allegations he was charged, as already stated, with the offence of cheating by personation under sec. 419, I. P. Code, and of murder and voluntarily causing hurt in committing robbery under secs. 302 and 394 respectively. 18. The offence under sec. 419 was clearly distinct from the offences charged under the other sections, and quite rightly a separate charge was framed in respect of it, as required by sec. 233 of the Code of Criminal Procedure. The question is whether or not a separate trial was also required by the same section. Sec. 233 is in these terms: 233. 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 secs. 234, 235, 236 and 239. 19. A separate trial for every separate charge is thus the rule, and the only exceptions allowed are under secs. 234, 235, 236 and 239. Unless, therefore, the case falls within any of these exceptional provisions, it would be a clear breach of the statute to join a number of charges in the same trial. There can be no question in the present case of any of these provisions applying, other than sec. 235 (1), which alone we need consider. This provides as follows: 235 (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. 20. So far as the offences charged under secs. This provides as follows: 235 (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. 20. So far as the offences charged under secs. 302 and 394, I. P. Code, are concerned, on the facts alleged, they no doubt formed part of the same transaction, but not so the offence under sec. 419. 21. The charge under sec. 419 was in the following terms: That you from 2-7-36 to 2-9-36 at Bogoola P. S. Hanskhali (District Nadia) represented that you were a Hindu Brahmin giving out your name to be Kamala Kanta Ray Chowdhury of Bagerhat, District Khulna, and thereby induced Naresh Chandra Chatterjee to employ you as a cook and servant in his house, and thereby committed an offence punishable under sec. 419 of the Indian Penal Code and within my cognizance. It will be seen that the offence is treated as continuing down to the date of the principal occurrence. This by itself would not in my opinion connect it with the main crime so as to make it part of the same transaction. Mere proximity of time, even if established, would not be enough; there must be community and continuity of purpose between the different acts to make them parts of the same transaction. There is no suggestion and not an iota of evidence here to show that the accused got into the employ of the complainant under a false pretence two months before with the idea of committing murder or robbery or any other offence. Nor is it shown that the alleged cheating by personation in any way led upto the murder or robbery. The complainant's evidence is that had he known the accused to be a Mussalman, he would not have appointed him and would not have allowed him to cook his meals. This merely shows that the accused secured the job by cheating, and this also explains how the accused got into the complainant's house. If he was not in the house, he could not of course have committed the main crime, but it by no means follows that because he got there in the way alleged, there was any necessary connection between this and the actual offence which was committed later. 22. If he was not in the house, he could not of course have committed the main crime, but it by no means follows that because he got there in the way alleged, there was any necessary connection between this and the actual offence which was committed later. 22. Sec. 235 (1) requires that in order that several offences may be joined in one indictment, the offences must be committed by the same person in one series of acts, and that such acts must be not merely connected together, but so connected together as to form the same transaction. The first element to establish, therefore, is a " series of acts," which would necessarily imply the acts being " connected together," but this will not be enough: it will have to be shown further that the acts " form the same transaction." Mere sequence in time may establish the first clement, but not necessarily the other. The expression " so connected together as to form the same transaction " has purposely, and I may add, wisely, been left undefined, but the words must be given a reasonable and rational meaning, and cannot be stretched to include a series of acts which have no relation to each other as cause and effect or as principal and subsidiary, or which are not shown to follow, the one from the other, as a necessary or natural sequel or concomitant. 23. As I read sec. 235 (1), there must be one continuous thread of a common purpose running through the acts to support a joinder of charges in respect thereof. Mere difference in time or place between the commission of one offence and of another will not necessarily import want of such continuity: they may yet be linked together by a community or continuity of purpose, and thus form the same transaction. Applying this test, I have no hesitation in holding that the offence of cheating by personation and the other offences charged against the present accused are wholly disconnected acts which can by no stretch of language be brought within the words of the section. There can be no doubt, therefore, that the present trial was in clear breach of the provisions of sec. 233 of the Code of Criminal Procedure. 24. The question next arises as to the effect of this. There can be no doubt, therefore, that the present trial was in clear breach of the provisions of sec. 233 of the Code of Criminal Procedure. 24. The question next arises as to the effect of this. Did it vitiate the trial, or would it be cured by the provisions of sec. 537 of the Code of Criminal Procedure? 25. Sec. 537, by cl. (a), which is the only relevant clause to be considered in connection with the present case, cures "any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code." We need consider only the words "charge" and " other proceedings." So far as the charge is concerned, there was no error, omission or irregularity in it. The vice lay in the trial of the charge under sec. 419, I. P. C., with the charges under the other sections. Was this an error or irregularity in the proceedings such as would be cured by sec. 537? 26. Secs. 233 to 239 of the Code of Criminal Procedure no doubt enact rules of procedure regarding mode of trial, but they have been enacted with a view to prevent the prejudice which an accused person must inevitably suffer, if he is called upon to answer a multiplicity of charges in the same trial. The general rule is laid down in the clearest terms that each distinct offence must form the subject of a separate charge and of a separate trial, and it is within very well-defined limits that an exception is allowed. A breach of these provisions means the substitution of another mode of trial for that designed by the legislature as the best means of securing a fair trial, and a failure of justice in consequence thereof may be presumed and need not be proved. It seems to me, therefore, that the simultaneous trial of more than one charge except in the cases specifically provided for in secs. 234. 235, 236 and 239 must be bad in law. This is in fact what was laid down by the Judicial Committee in the well-known case of N. A. Subramania Iyer v. King-Emperor (1). That was a case of a trial in flagrant disregard of the provisions of sec. 234, and it was held that this vitiated the trial. 234. 235, 236 and 239 must be bad in law. This is in fact what was laid down by the Judicial Committee in the well-known case of N. A. Subramania Iyer v. King-Emperor (1). That was a case of a trial in flagrant disregard of the provisions of sec. 234, and it was held that this vitiated the trial. This is what was said: Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity. Such a phrase as irregularity is not appropriate to the illegality of trying an accused person for many different offences at the same time, and those offences being spread over & longer period than by law could have been joined together in one indictment.... The remedying of mere irregularities is familiar in most systems of jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted, (that) this contravention of the Code comes within the description of error, omission or irregularity. 27. The difference between this case and the present case is that whereas in the former the trial was in contravention of sec. 234, the section contravened in the latter is sec. 233 read with sec. 235, but here also it may be said, as was said by their Lordships, that the Code positively enacts that such a trial as that which has taken place here shall not be permitted. 28. In the case of an error in stating either the offence or the particulars required to be stated in the charge, or of an omission to state the offence or those particulars, the legislature has expressly laid down in sec. 225 that no such error or omission shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. It is significant that no such provision exists as regards failure to comply with the requirements relating to joinder of charges. 225 that no such error or omission shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. It is significant that no such provision exists as regards failure to comply with the requirements relating to joinder of charges. Having regard to the object with which these requirements have been prescribed in the Code and to the inevitable result of noncompliance, it seems to me impossible to avoid the conclusion that a misjoinder of charges must be regarded as a material defect going to the root of the trial, and consequently beyond the scope of sec. 537. 29. Mr. Bhattacharyya on behalf of the Crown sought to whittle down the effect of Subramania Iyer's case L. R. 28 I. A. 257: s. c. I. L. R. 25 Mad. 61: 5 C. W. N. 866 (1901), by referring to a more recent pronouncement of the Judicial Committee in Abdul Rahaman v. King-Emperor L.R. 54 I. A. 96: s. c. I. L. R. 5 Rang. 53; 31 C. W. N. 271 (1926) and a Full Bench decision of this Court in Emperor v. Erman All I. L. R. 57 Cal. 1228 : s. c. 34 C. W N. 296 (F. B.) (1930). These cases merely point out that Subramania Iyer's case L. R. 28 I. A. 257: s. c. I. L. R. 25 Mad. 61; 5 C. W. N. 866 (1901) is no authority for holding that the mere fact that a certain provision of the Code is imperative indicates that a breach of it will render the proceedings a nullity. As the Law Reports show, a none too careful reading of Lord Halsbury's judgment in Subramania Iyer's case L. R. 28 I. A. 257: s. c. I. L. R. 25 Mad. 61; 5 C. W. N. 866 (1901) had encouraged the idea that the curative provisions of sec. 537 did not apply to transgressions of the mandatory provisions of the Code, and to this Abdul Rahaman's case L.R. 54 I. A. 96: s. c. I. L. R. 5 Rang. 53; 31 C. W. N. 271 (1926), supplied a necessary and useful corrective, which was re-inforced in this Court by the Full Bench case. 537 did not apply to transgressions of the mandatory provisions of the Code, and to this Abdul Rahaman's case L.R. 54 I. A. 96: s. c. I. L. R. 5 Rang. 53; 31 C. W. N. 271 (1926), supplied a necessary and useful corrective, which was re-inforced in this Court by the Full Bench case. Neither of these two cases was a case of misjoinder of charges, but they related to what might be regarded as non-vital or minor matters of procedure. Subramania Iyer's case L. R. 28 I. A. 257: s. c. I. L. R. 25 Mad. 61; 5 C. W. N. 866 (1901) never intended to lay down that in regard to such matters infringements of the statutory provisions would not be cured by sec. 537: on the other hand, it guarded against the opposite danger which lay in holding, as a Full Bench of this Court had in fact held or assumed in In re Abdur Rahaman I. L. R. 27 Cal. 839: s. c. 4 C. W N 656 (F. B.) (1900), that because every error or irregularity, in so far as it contravenes the provisions of the Code, is in a sense illegal, all things which may in this view be called illegal, by that one adjective applied to them, become equal in importance and therefore susceptible of being treated alike under sec. 537. It may be pointed out that this Full Bench decision related to a case in which the trial had been held on charges joined together contrary to sec. 234, and the Full Bench held that sec. 537 would apply, but this was expressly disapproved by the Judicial Committee in Subramania Iyer's case L. R. 28 I. A. 257 : s. c. I. L. R. 25 Mad 61; 5 C. W. N. 866 (1901). The true position, as I apprehend it, is that it is as incorrect to state that every failure to conform to the statutory rules of procedure ipso facto vitiated the proceedings as to assert that every violation of the Code is curable under sec. 537. 30. In Abdur Rahaman's case I. L. R. 27 Cal. 839: s. c. 4 C. W. N. 656 (F. B.) (1900) the depositions of witnesses were not read over to them in strict compliance with the provisions of sec. 537. 30. In Abdur Rahaman's case I. L. R. 27 Cal. 839: s. c. 4 C. W. N. 656 (F. B.) (1900) the depositions of witnesses were not read over to them in strict compliance with the provisions of sec. 360 of the Code, and it was held by the Judicial Committee that as there had been no actual or possible failure of justice, the trial was not vitiated, and that sees. 535 and 537 would apply. Referring to Subramania Iyer's case L. R. 28 I. A. 257: s. c. I. L. R. 25 Mad 61; 5 C. W. N. 866 (1901), their Lordships observed: There the trial of a man on charges of extortion in which forty-one criminal acts extending over a period of two years were brought against him in contravention of a section of the Code (section 234) which provides that a man can only be tried for three offences and those committed within a period of twelve months, was held bad, and the conviction was quashed, because the provisions of section 537 of the then Criminal Procedure Code did not cure it. The distinction between that case and the present is fairly obvious. The procedure adopted was one which the Code positively prohibited, and it was possible that it might have worked injustice to the accused. 31. I do not read this decision as in any way affecting the applicability of Subramania Iyer's case L. R. 28 I. A. 257 s. c. I. L. R. 25 Mad 61; 5 C. W. N. 866 (1901) to a case of misjoinder of charges. If such a defect came within the scope of sec. 537, it would vitiate the trial only if it was shown that it " in fact occasioned a failure of justice," and not merely that " it was possible that it might have worked injustice to the accused." The use of these words in this problematic form in the passage quoted above indicates to my mind that in Abdul Rahaman's case L. R. 54 I. A. 96: s. c. I. L. R. 5 Rang. 53; 31 C. W. N 271 (1926) the Judicial Committee did not really intend to suggest that Subramania Iyer's case L. R. 28 I. A. 257 : s. c. I. L. R. 25 Mad. 61; 5 C. W. N. 866 (1901) fell within sec. 537. 32. 53; 31 C. W. N 271 (1926) the Judicial Committee did not really intend to suggest that Subramania Iyer's case L. R. 28 I. A. 257 : s. c. I. L. R. 25 Mad. 61; 5 C. W. N. 866 (1901) fell within sec. 537. 32. Be that as it may, so far as the present case is concerned, it would easily come within the decision on its narrowest interpretation. For, it may be equally said in the present case, in the words of the Judicial Committee, that the procedure adopted was one which the Code positively prohibited, and it was possible that it might have worked actual injustice to the accused. It is difficult to say how far the jury might or might not have been influenced by the evidence of cheating with reference to the charge under sec. 419, I. P. Code, in arriving at their verdict on the other charges. It seems to be indeed doubtful if the evidence of cheating would be at all relevant to the charge of murder, even on the question of motive, seeing that the complainant's own evidence is that there were other occasions also when he had left on tour leaving the accused in charge of his wife, and that during the months the accused was in his employ, he had given no cause for complaint and had never had any quarrel with the complainant's wife. That being so, it cannot be said that the introduction of this evidence did not occasion any prejudice to the accused. It is no answer for the Crown to say that the charge under sec. 419 might be eleminated and the verdict of the jury appropriated only to the charge for murder: this would be to leave to the Court the functions of the jury, and also to convict the accused on a charge on which he would never have been really tried. 33. The safer rule to my mind would be to hold that where the contravention of the statute is in respect of the very important and salutary provisions relating to joinder of charges, there is such a breach of the rules of procedure as to amount to an illegality going to the root of the trial, and therefore beyond the curative provisions of sec. 537. 34. As for the Full Bench case of Erman Ali I. L. R. 57 Cal. 537. 34. As for the Full Bench case of Erman Ali I. L. R. 57 Cal. 1228: s. c. 34 C. W. N. 296 (F. B.) (1930), here in a murder trial fourteen instead of eighteen jurors had been summoned, nine of whom were chosen by lot and empanelled, and it was held that this would not render the trial a nullity, merely because it was in contravention of the provisions of sees. 274 and 326 of the Code. The noncompliance with the provisions of the statute in this case did not evidently constitute a fundamental defect of procedure, and sec. 537 was, therefore, held to be an effective answer. In delivering the judgment of the Full Bench, Rankin, C. J.,' made certain observations regarding Subramania Iyer's case L. R. 28 I. A. 257: s. c. I. L. R. 25 Mad. 61; 5 C. W.N. 866(1901) based on the decision of the Judicial Committee in Abdul Rahaman's case L. R. 54 I. A. 96, s. c. I. L. R. 5 Rang. 63; 31 C. W. N. 271 (1926), on which Mr. Bhattacharyya strongly relied as affording a correct guidance to the interpretation of sec. 537. These observations will be found at pp. 1240-1241 of the report, but they hardly touch a case like the present. The learned Chief Justice correctly pointed out that seeing that the Code is one long list of " imperatives," some of which have reference to matters which are in no way vital and many of which are directed to minor incidents of procedure, it would have been a grave disadvantage if sec. 537 was not held to apply, merely because the express provisions of the statute had, not been complied with. But as will be seen, his Lordship evidently meant to draw a distinction between what he calls "minor incidents of procedure" and matters which are " vital." The rules relating to joinder of charges must, in my opinion, be regarded as " vital matters." As regards Subramania Iyer's case L. R. 28 I. A. 257: s. c. I. L. R. 25 Mad 61; 5 C. W. N. 866 (1901), what the learned Chief Justice says merely amounts to this, namely, that if and in so far as this case is understood to hold that nothing could be cured under sec. 537, if it was illegal (and in a sense the merest irregularity might be regarded as illegal, if it contravened the statute), we now, have in Abdul Rahaman's case L. R. 54 I. A. 96: s. c. I. L. R. 5 Rang. 53; 31 C. W. N. 271 (1926) an express decision to the contrary. His Lordship adds that " both decisions are really a condemnation of the view that all illegalities are as such in the same category for the present purpose." 35. On a careful consideration of the matter, I have, therefore, reached the conclusion that there was a misjoinder of charges in the present case which vitiated the trial and to which sec. 537 would be no answer. 36. The question then arises as to the order to be made. The conviction and sentence of the Appellant must of course be set aside, but it would in my opinion be contrary to the ends of justice to direct his acquittal. I agree with my learned brother that there should be a retrial. The retrial should be before the Sessions Judge and a jury in respect of the main offences committed on the 2nd September, 1936, while as regards the offence of cheating under sec. 419, I. P. C., it should be before a Magistrate of the first class, should the Crown deem it necessary to proceed with this charge. 37. As regards the main offences, the retrial should be on a charge of murdor under sec. 302, I P. C. (and not under sec. 304, Part I), coupled with a charge under sec. 394. On the facts of the case as disclosed by the evidence, it is difficult to understand how the jury could bring in a verdict of guilty under sec. 304, Part I, instead of sec. 302. 38. The accused had made a confession in this case, but it was subsequently retracted. Regarding the main incident, in his confession he states that on the evening of the day of occurrence, he had cooked rice, and then went to the complainant's wife to enquire what curry he would prepare. She gave no reply but came to the kitchen with some peeled potatoes. She was very annoyed with him, and told him that he need not grind spices and further stated, " This is not the place where work should be done according to one's own wish. She gave no reply but came to the kitchen with some peeled potatoes. She was very annoyed with him, and told him that he need not grind spices and further stated, " This is not the place where work should be done according to one's own wish. Go away from the place." On this the accused stated " Very well, you pay me my dues." Saying this the accused remained standing at the door, while the complainant's wife was cooking. She is then alleged to have given him a push and ordered him out of the kitchen, saying, " A cook like you ought to be given plantains instead of wages. You are so impertinent to your master." At this the accused felt mortified and got very angry. He caught the complainant's wife by the throat, on which she cried out, " you thakur" and then she dropped down and her tongue came out. The accused applied water to her face and felt her heart-beats and found that her jaws had set. He got, absolutely bewildered, and fled in fright, taking off with him some ornaments from the lady's person. 39.The Judge warned the jury that the confession having been retracted, it required corroboration before it could be acted upon, but having done that, he went on to direct the jury on the argument of the defence that if the statements in the confession were believed, the accused should be held to have acted under grave and sudden provocation, and that the case might come under exception (1) of sec. 300, I. P. C. It seems to me, with all respect, that this was a clear misdirection. On that statement of the accused, he was guilty neither of murder nor of culpable homicide not amounting to murder. In any case, it is not at all clear how there could be any grave and sudden provocation so as to bring the case under exception (1) of sec. 300. The verdict of guilty under sec. 304, Part I, which the jury brought in, explained as it may be by this misdirection, was clearly a perverse verdict, and in my opinion, therefore, it is necessary that the retrial should be on a charge of murder under sec. 302, I. P. Code, and of causing hurt in committing robbery under sec. 394. 40. 304, Part I, which the jury brought in, explained as it may be by this misdirection, was clearly a perverse verdict, and in my opinion, therefore, it is necessary that the retrial should be on a charge of murder under sec. 302, I. P. Code, and of causing hurt in committing robbery under sec. 394. 40. The fact that the accused was acquitted of these charges at the trial now set aside will not in my opinion bar a retrial in respect thereof. There is clear authority in support of the view that when a conviction is set aside and a retrial ordered, the whole case is reopened, and the accused may be tried again on all the charges originally framed. See Nazimuddin v. Emperor I. L. R. 40 Cal 163(1912). In this case the accused was committed to the sessions under secs. 148 and 304, I. P. Code, but was sentenced under sec. 147. On an appeal from the conviction, the conviction under sec. 147 was set aside as untenable on the findings of the Judge, and a retrial ordered on the original charges. There was no formal order of acquittal recorded in respect of the original charges, but there can be no doubt that a conviction under sec. 147 amounted to an acquittal on the other charges. It was held that having regard to the provisions of sec. 423 of the Code of Criminal Procedure, the provisions of sec. 403 could not apply. 41. Reference was made to the case of Krishna Dhan Mandal v. Queen-Empress I. L. R. 22 Cal. 377 (1894). In this case it was held that where the Appellate Court reverses the verdict of a jury and orders a retrial, the verdict is set aside in its entirety, and the retrial must be upon all the charges originally framed. The learned Judges no doubt indicated in their judgment that what they said was intended to apply only to those cases which are contemplated by sec. 236 of the Code of Criminal Procedure, and in which the accused is charged with different offences arising out of a single act or a series of acts, it being doubtful which of these offences the act or acts constitute, and the accused is convicted by the first Court of one of these and acquitted of the others. 236 of the Code of Criminal Procedure, and in which the accused is charged with different offences arising out of a single act or a series of acts, it being doubtful which of these offences the act or acts constitute, and the accused is convicted by the first Court of one of these and acquitted of the others. They went on to add that where an accused person is charged at one trial with distinct offences constituted by distinct acts, such as the causing of death to A and of grievous hurt to B, or the forgery of document A and that of document B, and he is acquitted of one of these offences and convicted of the other, a different principle would apply. I do not think the present case is hit by these observations. Here the effect of the directions we propose to give may turn out to be, as a result of the retrial, merely to alter the findings on the same set of facts from culpable homicide not amounting to murder to murder and from an offence under sec. 381 to one under sec. 394, I. P. Code. It will be seen that the illustration given by the learned Judges contemplates two distinct offences, affecting two distinct persons in one case and two distinct documents in the other case put in the illustration. This is not the kind of case we have before us. Our attention was directed in the course of argument to certain pronouncements in some recent decisions of this Court in which a contrary view is indicated. These cases are Nitya Gopal Sadhu v. Emperor 38 C. W. N. 1128 (1934), Abdul Khan v. Emperor I. L. R. 62 Cal. 928: s. c. 39 C. W N., 677 (1935) and Naimuddin Biswas v. Emperor 40 C. W. N. 666(1936). 42. In the first of these cases, in making the Rule absolute, Guha and Bartley, JJ., merely stated that the Sessions Judge could not direct a retrial of the Petitioners under the law, in respect of the offences of which they had been previously acquitted by the Assistant Sessions Judge. Their Lordships gave no reasons in support of their view. In the second case, Jack, J., was inclined to accept the view expressed in the earlier decisions of this Court, but Lort-Williams, J., held a contrary opinion. He relied on sec. Their Lordships gave no reasons in support of their view. In the second case, Jack, J., was inclined to accept the view expressed in the earlier decisions of this Court, but Lort-Williams, J., held a contrary opinion. He relied on sec. 403 (1) of the Criminal Procedure Code and held that at the time of the second trial the previous acquittal remained in force, and that the principle autre fois acquit would, therefore, apply. He further stated that the terms of sec. 423 (1) showed that no power was given to the Appellate Court to interfere with an order of acquittal in the absence of an appeal from that order, and he expressly dissented from the earlier cases. As, however, the Appellant was entitled to be acquitted on other grounds as to which both the learned Judges were in agreement, his Lordship did not think it necessary to refer the question to a Full Bench. A similar view was expressed by Cunliffe, J., in the last of the three cases mentioned above, but my learned brother Henderson, J., reserved his opinion on the point. 43. It seems to me that the reasons given by Lort-Williams, J., are not at all sound. Sec. 403 (1) on which he relies has no application, inasmuch as the retrial will not be a second trial, but only a continuation of the first trial. See Queen-Empress v. Jabanulla I. L. R., 23 Cal. 975(1896). The trial of the accused would not in fact be concluded until the retrial has been held, and it cannot, therefore, be said that an acquittal at the original trial (no more than a conviction) "remains in force" during the retrial within the meaning of sec. 403 (1). The matter really depends on the construction of sec. 423. As was indicated in the earlier decisions already referred to, there is no warrant for limiting the construction of this section in the way suggested by Lort-Williams, J. Such a construction would, in fact, lead to grave miscarriage of justice in many cases, and would obviously be contrary to the spirit of the Code which has taken care to make provision in numerous sections to prevent such a result. In the present case it is not possible to contend that no offence was committed by the accused: he was merely given the benefit of the first exception to sec. In the present case it is not possible to contend that no offence was committed by the accused: he was merely given the benefit of the first exception to sec. 300, and that, as we hold, under circumstances, not justified by the evidence in the case. If effect is given to Lort-Williams, J.'s view and the order of acquittal under sec. 302 is allowed to stand, the accused would be cheating the law of its dues. Such an absurd result ought in my opinion to be avoided, unless this is rendered imperative by the constraining provisions of the statute. In an appeal from a conviction, sec. 403 by cl. (b), provides that the Appellate Court may reverse the finding, and sentence, and acquit or discharge the accused, or may order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court. The words providing for a retrial are quite general and cannot be read as limiting the powers of the Appellate Court in the way suggested. I do not think we can turn to the provisions of cl. (a) as introducing any such limitation of the powers conferred by cl. (b). The verdict of the jury, when set aside on an appeal from a conviction, is set aside in its entirety. 44. Having regard to the fact that the observations of Lort-Williams, J., as also those of Cunliffe, J., were really in the nature of obiter dicta, there is no occasion for referring the question to a Full Bench for final decision. We prefer to follow the earlier cases which represent decisions of Division Benches, and which, in our opinion, correctly lay down the law. The result is that I agree in the order proposed by my learned brother.