JUDGMENT MEHROTRA, C. J. : This is a revision on behalf of the State against an order of the Additional Sessions Judge, Lower Assam Division, Gauhati, by which he has allowed amendment of the charge and remanded the case for retrial. 2. The opposite party-accused were sent up for trial before a Magistrate under section 147/447, Indian Penal Code. The Magistrate convicted them. On appeal, the Additional Sessions Judge has held that there was a mistake in the charge inasmuch as in the charge it was set out that the accused formed an unlawful assembly on the 20th May 1958 and entered into the house of one Madhab Barua although in the evidence it was given out that the occurrence took place on the 28th May 1958. In the statement before the Court the accused were asked to show cause whether they committed any offence by entering into the house of Madhab Barua on the 28th May 1958. The accused were, therefore, prejudiced in their defence and they were not given an opportunity to explain regarding the occurrence of the 28th May 1958. 3. The contention of the State is that the order of retrial is erroneous. Reliance is placed on section 225 of the Code of Criminal Procedure which provides that "no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, 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." The only element of the charge, which was wrongly stated in the charge, was that the offence was alleged to have been committed on the 20th of May 1958 although in fact the occurrence took place on the 28th of May 1958. It is contended by the State that unless it can be shown that the accused was misled by that error and that resulted in failure of justice, the court below was not right in directing retrial. It is contended by the State that unless it can be shown that the accused was misled by that error and that resulted in failure of justice, the court below was not right in directing retrial. Section 537, Criminal Procedure Code provides : "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........" Under section 537, Criminal Procedure Code, merely an irregularity in the charge will not result in the setting aside of the order or sentence passed unless it can be shown that the accused was misled by that irregularity and that resulted in failure of justice. The main question, therefore, to be considered is whether on the facts it can be said that the accused were misled by this omission which resulted in the failure of justice. The court below has not dealt with the question at all as to whether the accused were misled by this omission. On the contrary the court below has clearly held that as the charge regarding the occurrence of the 20th May 1958 was framed even though the accused in their statements were asked to explain the offence which they were alleged to have committed on the 28th May 1958 and even though the prosecution witnesses all stated about the occurrence of the 28th May 1958, still the accused were prejudiced because the charge contained the date of occurrence as 20th May 1958, and the accused were not given an opportunity to explain with regard to the occurrence of the 28th May 1958 as that charge was not amended. The fact that all the prosecution witnesses stated about the occurrence of the 28th May 1958 and the fact that the accused were actually asked as to whether they had or had not committed any offence on the 28th May 1958 and in their statement the accused definitely stated that they were away on the 28th May 1958, go to show that the accused all along knew that they were being charged for the offence of the 28th May 1958 and not of the 20th May 1958, and if they knew from the very beginning that they were being accused of having committed trespass on the 28th of May 1958, it cannot be said that they were misled by any omission in the charge which occasioned any failure of justice. It is contended by the counsel for the opposite party that, in the present case, in the statement the date is overwritten and at the time of argument the accused orally made a prayer that they were in the horns of a dilemma to meet the charge inasmuch as in the charge the date given was 20th of May 1958 while in evidence it was the 28th of May 1958. They asked for the amendment of the charge and thereafter they should be given an opportunity to adduce evidence to show that they were not present on the 28th of May 1958 at the place of occurrence. Their prayer was not acceded to. Even this prayer according to the accused's own case was made at the time of the argument. Before that question had been put to the accused and they fully knew that they were being tried for having committed offence on the 28th of May. It was, therefore, up to them to have adduced evidence in defence if they so desired. It cannot, therefore, be said that there was any prejudice caused to the accused and that they were misled because of the omission in the charge itself regarding the date. It is again very strongly contended that the question whether the accused were prejudiced or not is a question of fact and when the court below has come to the conclusion that the accused were prejudiced on some materials before him, this Court will not interfere with it unless it can be shown that there was no material for the appellate court to come to that conclusion. There are two answers to this contention. Firstly, the appellate court has not considered the question at all as to whether the accused were misled by this omission and on the facts it cannot be said that the accused were misled when the witnesses definitely stated in the court about the occurrence of the 28th May 1958 and the question was put to the accused in their statement under section 342, Criminal Procedure Code about the occurrence of the 28th May 1958, and, secondly, that even the finding of the court below that the accused were prejudiced is based only on the assumption that as in the charge the date given was 20th May 1958, by putting the question to the prosecution witnesses about the occurrence of the 28th May 1958 and by putting that question to the accused, about the occurrence of the 28th May, the accused were prejudiced. We do not think that it can be said that as in the charge the date given was 20th May and the prosecution witnesses stated that the occurrence took place on the 28th May and the accused were specifically put that question, they were prejudiced at all and thus the finding of the Additional Sessions Judge, in our opinion, is manifestly perverse and under these circumstances he had no power to direct retrial. He should have disposed of the appeal on merits and on the evidence before him. 4. Reference has been made to the case of Willie (William) Slaney v. State of Madhya Pradesh, reported in (S) AIR 1956 SC 116 . We do not think that the facts of that case apply to the facts of the present case. Each case will depend upon its own circumstances and from the totality of the circumstances it will have to be considered whether the accused can be said to have been prejudiced in the case and whether he was misled by the omission or not. There may be various factors which may be relevant in coming to a decision whether the accused has or has not been prejudiced, but each case will depend upon its own circumstances. Merely because the accused at the time of argument raised an objection orally and wanted the amendment of the charge, it does not necessarily follow that they were misled by this omission and were prejudiced in their defence. 5. Merely because the accused at the time of argument raised an objection orally and wanted the amendment of the charge, it does not necessarily follow that they were misled by this omission and were prejudiced in their defence. 5. We accordingly allow this revision, set aside the order of the Additional Sessions Judge and send back the case to the Sessions Judge to dispose of the appeal on merits. 6. We are informed that some application was made before the appellate court by the accused for taking certain additional evidence. That application will be disposed of on its own merits by the Sessions Judge hearing the appeal. 7. S. K. DUTTA, J. : I agree. Revision allowed.