KOLI DAYA MERA v. STATE — 1967 DIGILAW 121 (GUJ)

V. R. SHAH, J. ( 1 ) THESE two revision applications are heard together because certain points of law are common and this judgment will dispose of both the revision applications. ( 2 ) IN order to understand points of law arising in these two revision applications 1t is necessary to set out in brief the facts giving rise to these two applications. ( 3 ) CRIMINAL Revision Application No. 101 of 1966 arises from a case which was filed against the two petitioners for having committed offences punishable under secs. 66 (1) (b) and 85 (1)- (1) (2) (3) of the Bombay Prohibition Act (hereinafter referred to as the Act. The charge against them was that on 31st August 1965 these two petitioners were found on a public road at the Fair in the village of Tarnetar at 3-15 P. M. They were found drunk and were unable to take care of themselves. Both of them were taken to the Medical Officer at Thangadh on the same day at 4-45 P. M. The Medical Officer examined them and also took blood from each of them and sent the same to the Chemical Examiner at Junagadh. On the basis of the Chemical Analysers certificates that petitioner No. 1 had a concentration of alcohol in his blood to the extent of o. 1771 per cent W/v and the petitioner No. 2 had such concentration of alcohol in his blood the two petitioners under sec. 66 (2) of the Act that they had consumed an intoxicant. They were ultimately convicted for having committed the offences punishable under secs. 66 (1) (b) and 85 (1)- (1) (2) and (3) of the Act and sentenced to imprisonment and fine. The appeal to the Sessions Judge was dismissed and therefore this revision application Is filed by them to this Court. ( 4 ) IN Criminal Revision Application No. 323 of 1967 a case was filed against the petitioner on the charge that be was found drunk on a public road in Junagadh on 1-10-1966 at about 2-00 P. M. He was also produced before the Medical Officer and his blood was taken and was sent to the Chemical Analyser at Junagadh and on the strength of his certificate a presumption was raised by the learned trial Judge under sec. 66 (2) of the Act to the effect that he bad consumed an intoxicant. 66 (2) of the Act to the effect that he bad consumed an intoxicant. He was also convicted for the offence publishable under secs. 66 (1) (b) and secs. 85 (1)- (1) and (3) and sentenced to imprisonment and fine. His appeal to the Sessions Court having been dismissed the petitioner has filed this revision application to the Court. ( 5 ) THE learned advocates appearing on behalf of the petitioners in these two revision applications have raised a contention that the provisions of sec. 129 (A) of the Bombay Prohibition Act and the provisions of Rules 3 4 and 5 of the Bombay Prohibition (Medical Examination and Blood Test) Rules 1959 (hereinafter to be referred to as the Rules of 1959) are violative of Article 20 (3) of the Constitution of India and therefore they are null and void as being in conflict with this provision of the Constitution. Certain other contentions are also raised by the learned Advocate for the petitioners in these two revision applications and we will discuss them in due course. ( 6 ) SEC. 129 (A) of the Bombay Prohibition Act of 1949 was inserted in the Act by the Bombay Act No. 12 of 1959. Sec. 129 (A) empowers any Prohibition Officer duly empowered in this behalf by the State Government or any Police Officer to produce any person before the registered Medical Practitioner if he has reasonable ground for believing that that person has consumed an intoxicant and that for the purpose of establishing that he has consumed an intoxicant or for the procuring of evidence thereof it is necessary that his body be medically examined or that his blood be collected for being tested for determining the percentage of alcohol therein. Sub-sec. (1) of sec. 129 (A) therefore authorises such Prohibition Officer or Police Officer to produce such person before the registered medical practitioner. By sub-sec. (3) of sec. 129 (A) such Prohibition Officer or Police Officer is empowered to use all means reasonably necessary to secure the production of such person for the examination of his body or the collection of blood necessary for the test in case such person offers resistance to his production before the registered medical practitioner. By sub-sec. (5) of sec. 129 (A) resistance to production before a registered medical practitioner or to the examination of the body is deemed to be an offence under sec. By sub-sec. (5) of sec. 129 (A) resistance to production before a registered medical practitioner or to the examination of the body is deemed to be an offence under sec. 186 of the Indian Penal Code. The net effect of the provisions of sec. 129 (A) is to compel the production of a person believed to have consumed an intoxicant before the registered medical practitioner with a view to provide the Investigating Officer with materialist establish the fact of consumption of intoxicant by that person or to enable that officer to procure evidence of such consumption of intoxicant by that person. Under the provisions of this section it is not open to a person who is asked by such officer to accompany him to the medical practitioner to refuse to do so because upon such refusal the officer is empowered to use all means which would include ail reasonable force to compel the production of his body before the registered medical practitioner. It is not open to such a person to resist or cause obstruction in the examination of his body by the registered medical practitioner or to cause obstruction to the withdrawal to blood from his body by the registered medical practitioner because the Prohibition Officer or the Police officer is in that event entitled to use all reasonable force which would be necessary to enable the medical practitioner to examine his body or to withdraw the blood from his body. It is also to be noted that any such resistance to production or examination before the medical practitioner is made an offence and the person so resistant or obstructing the medical practitioner can be punished as having committed an offence punishable under sec. 186 of the Indian Penal Code. ( 7 ) IN order to carry out the provisions of sec. 129 (A) of the Bombay Prohibition Act the Government has framed rules entitled the Bombay Prohibition (Medical Examination and Blood Test) Rules 1959 Rule 3 of the said Rules of 1959 provides for medical examination by a registered medical practitioner. It also authorises the medical practitioner to collect and forward the blood of the person produced before him. Rules 4 and 5 provide for the manner in which the blood should be drawn collected and sent to the Chemical Analyses. It also authorises the medical practitioner to collect and forward the blood of the person produced before him. Rules 4 and 5 provide for the manner in which the blood should be drawn collected and sent to the Chemical Analyses. Rule 4 lays down the manner In which the medical practitioner is to withdraw the blood from the body of the person produced before him. We will refer to this rule 4 in detail at the proper place. The blood so collected by the medical practitioner is required to be sent to the Testing Officer who is defined in the rules as the Chemical Examiner or the Assistant Chemical Examiner to Government or to such other officer appointed by the State Government for testing blood under sub-sec. 1 of sec. 129 (a) of the Act. The Testing Officer is to certify the result of his test under Rule 5. In substance the testing officer has to find out the concentration of alcohol in the blood expressed in the form of percentage in weight in volume. Under the provisions of sec. 66 (2) of the Act (which is also added by Bombay Act XII of 1959) if it is found that the concentration of alcohol in the blood of the accused person is not less than 0. 05 per cent the burden shifts upon the accused to prove that liquor consumed by him was a medicinal or toilet preparation or an antiseptic preparation or solution etc. and the Court is enjoined in the absence of such proof to presume the contrary. ( 8 ) THE contention urged before us is that these provisions of sec. 129 (A) of the Act and of the Rules 3 4 and 5 of the Rules of 1959 are violative of the provisions of Article 20 (3) of the Constitution of India and therefore they are unconstitutional and void. Article 20 (3) of the Constitution of India reads as follows:-NO person accused of any offence shall be compelled to be a witness against hsimself. The argument is that by the provisions of sec. Article 20 (3) of the Constitution of India reads as follows:-NO person accused of any offence shall be compelled to be a witness against hsimself. The argument is that by the provisions of sec. 129 (A) and Rules 3 4 and 5 of the Rules of 1959 the accused person is compelled to produce his body before the Registered Medical Practitioner for the purpose of enabling the prosecution to obtain proof to show that he is guilty of an offence of having consumed an intoxicant which is punishable under sec. 66 (1) (b) of the Act. The physical examination by the medical practitioner will enable the prosecution to put forward the evidence showing such condition of his body as would induce the Court to hold that he has consumed an intoxicant. The withdrawal of the blood from his body would enable the prosecution to get it analysed by the Chemical Examiner and thereby the prosecution would be able to show that the concentration of alcohol weight in volume is more than the prescribed figure of 0. 05 and thereby the prosecution would be enabled to ask the Court to raise a presumption that he has not consumed any medicinal or toilet preparation or an antiseptic preparation or solution etc. which is permitted under the law and the burden will shift upon him to show that he had done so. The argument is that he is compelled to furnish evidence by presenting himself before the Medical practitioner for examination and be making it possible for the Medical Practitioner to withdraw the blood from his body. The argument is that if he is compelled to furnish evidence then he is compelled to be a witness against himself because that evidence is to be used against him. The submission therefore is that the provisions of sec. 129 (A) of the Act and Rules 3 4 and 5 of the Rules of 1959 compel the accused person to be a witness against himself which is prohibited by Article 20 (3) of the Constitution. ( 9 ) THE contention of the learned Government Pleader is that mere production of his body by the accused person before the Medical Practitioner for examination by him or for withdrawal of blood from his body is not equivalent to furnishing any evidence by the accused person against him. ( 9 ) THE contention of the learned Government Pleader is that mere production of his body by the accused person before the Medical Practitioner for examination by him or for withdrawal of blood from his body is not equivalent to furnishing any evidence by the accused person against him. The submission is that the accused person is not required to do any positive volitional act as a result of the provisions of sec. 129 (A) of the Act and Rules 3 4 and 5 of the Rules of 1959 and if the accused is not required to do any such act even under the compulsion it cannot be said that he is furnishing any evidence or that he is giving a testimony in any sense. It was further submitted that the phrase to be a witness as used in Article 20 (3) of the Constitution does not include all manners of furnishing evidence by an accused person. It is urged that the phrase to be a witness in this article only means imparting knowledge by the accused either by making an oral statement or by making a statement or by making intelligible gestures which convey to the person who sees the gestures knowledge from the accused person. ( 10 ) MR. Vyas who argued both the revision applications on behalf of himself as well as for Mr. P. M. Raval heavily relied upon a decision of the Supreme Court in the case of M. P. Sharma and others v. Satish Chandra District Magistrate Delhi and others A. I. R. 1954 Supreme Court page 300. In that case a search warrant was issued in favour of the Police Officer and the Police Officer searched and seized certain documents from the premises occupied by the petitioners. A question was raised whether on account of this search and seizure of documents from the premises in possession of the petitioner he was compelled to be a witness against himself. In that case the Supreme Court held that the guarantee in Article 20 (3) against testimonial compulsion is not confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand but it also extends to compelled testimony if he is compelled to produce documents or making intelligible gestures as in the case of a dumb witness. The Supreme Court also held that to be a witness is nothing more than to furnish evidence and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. It further held that the protection afforded to an accused person In so far as it is related to the phrase to be a witness is not merely in respect of testimonial compulsion in the Court room but may well extend to compelled testimony previously obtained from him. ( 11 ) MR. Vyas relied upon this interpretation by the Supreme Court that to be a witness is equivalent to furnishing evidence. Mr. Vyas contention is that the compelled production of accused person before the registered Medical Practitioner with a view to enable the Police Officer to obtain material to establish that he has consumed an intoxicant or to procure evidence thereof will be equivalent to his being compelled to furnish evidence so as to incriminate himself that is he is being compelled to furnish evidence against himself. ( 12 ) M. P. Sharmas case relied upon by Mr. Vyas was however reconsidered by the Supreme Court in the later decision of State of Bombay v. Kathi Kalu Oghad A. I. R. 1961 Supreme Court page 1608. This decision expressly refers to M. P. Sharmas case and a Fuller Bench consisting of eleven Judges was specially formed as it was felt that some of the propositions laid down in the previous case may have been too widely stated and therefore required to be re-stated with more particularity. The judgment by the majority of Judges was delivered by the learned Chief Justice and after reviewing the case law on the point the Supreme Court has summarized its conclusions on page 1316 in 7 paragraphs. The paragraphs material for our consideration are as follows:- (3) To be a witness is not equivalent to furnishing evidence in its widest significance; that is to say as Including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused. (4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writing or showings parts of the body by way of identification are not included in the expression to be a witness. (4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writing or showings parts of the body by way of identification are not included in the expression to be a witness. (5) To be a witness means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing made or given in Court or otherwise. (6) To be a witness in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning namely bearing testimony in Court or out of Court by a person accused of an offence orally or in writing. ( 13 ) IT is clear from this statement of law laid down by the Supreme Court that the phrase to be a witness in Article 20 (3) of the Constitution has no such wide meaning as would be conveyed by the phrase to furnish evidence which was used by the Supreme Court in earlier decision of M. P. Sharmas case. In this later decision the Supreme Court has noted that the phrase to furnish evidence has two meanings; one narrow and the other wider. This is discussed by the Supreme Court in paragraph 10 on page 1814. The relevant observations are as follows:-TO be a witness may be equivalent to furnishing evidence in the sense of making oral or written statements but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. Furnishing evidence in the latter sense could not have been within the contemplation of the Constitution makers for the simple reason that though they may have intended to protect an accused person from the hazards of self incrimination in the light of the English Law on the subject-they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. ( 14 ) IT is clear from the statement of law as laid down by the Supreme Court in 1961 in the case stated above that the wide meaning to the phrase to be a witness given by the earlier decision of the Supreme Court in M. P. Sharmas case has been narrowed down and the phrase to be a witness in Article 20 (3) of the Constitution of India would now mean imparting of knowledge by an accused person either orally or in writing or in some other manner and if such knowledge is self incriminating then be would be a witness against himself. ( 15 ) THE point then which requires now to be considered is whether by submitting to the Medical Practitioner or physical examination and for withdrawing blood from his body each of the petitioners in the two cases becomes a witness against himself within the meaning of those words in Article 20 (3) of the Constitution as interpreted by the Supreme Court in Kathi Kalu Oghads case. Mr. Vyas stated to us that the case of the petitioners would fall within the Provisions of conclusion No. 5 mentioned by the Supreme Court on page 1817. That conclusion is reproduced above and in our opinion the case of no petitioner would fall within this conclusion No. 5. No Statement is made by the petitioners either orally or in writing or in any other manner. By the mere fact that the petitioners have submitted themselves to the Registered Medical practitioner for physical examination or for withdrawing blood from their bodies it cannot be said that they have given any evidence against themselves. It is true that the blood withdrawn from the body of the petitioners would be subjected to a process of analysis by the Chemical Examiner with a view to come to a conclusion as to what Concentration of alcohol expressed in percentage of weight in volume is in the blood. But the withdrawal of the blood by itself without anything more does not lead to any evidence much less any statement against the accused person. In our opinion the withdrawal of blood cannot be deemed to fall under conclusion No. 5 laid down by the Supreme Court. Therefore in our opinion the provisions of sec. But the withdrawal of the blood by itself without anything more does not lead to any evidence much less any statement against the accused person. In our opinion the withdrawal of blood cannot be deemed to fall under conclusion No. 5 laid down by the Supreme Court. Therefore in our opinion the provisions of sec. 129 (A) of the Act though they compel a particular accused person to produce himself before a medical practitioner do not compel the accused person to be a witness against himself within the meaning of Article 20 (3) of the Constitution. The provisions of sec. 129 (A) of the Act therefore are not shown to be unconstitutional and the rules also are not shown to be unconstitutional in any way. It was conceded by Mr. Vyas that if the provisions of sec. 129 (A) of the Act are not unconstitutional then he has no independent arguments to say that rules are in any way unconstitutional. ( 16 ) THERE is another ground also on which we would like to base our decision that sec. 129 (A) of the Act does not violate the guarantee against testimony compulsion in Article 20 (3) of the Constitution. In order to develop this point it is necessary to understand what is meant by giving testimony or being a witness. To be a witness would mean furnishing evidence as held by the Supreme Court in M. P. Sharmas case and also in Rathi Kalu Oghads case though in a restricted sense. Now evidence can be furnished by a person only by a positive volitional act by him. In order to furnish evidence the accused person has to do some positive act which be does because there is volition on his part to do so. Making of a statement or giving of thumb impression or giving specimen handwriting are all instances of positive acts which are volitional on the part of the accused person. There is some positive act done by the accused person which being relevant to prove the case of the prosecution is to be used by the prosecution as evidence in the case. There is some positive act done by the accused person which being relevant to prove the case of the prosecution is to be used by the prosecution as evidence in the case. While dealing with the arguments as to what amounts to testimony the Supreme Court in M. P. Sharmas case observed as follows:-IT is not a guide to the connotation of the word witness which must be understood in its natural sense i. e. as referring to a person who furnishes evidence. Indeed every positive volitional act which furnishes evidence is testimony and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person as opposed to the negative attitude of silence or submission on his part. The volitional act is an act which is done by a person because of his desire to do so. Such desire may arise in his mind either voluntarily or on account of compulsion. Even though a person may be unwilling to give his specimen handwriting still if he is compelled to do so say under threats of physical assault then in order to avoid being assaulted and hurt a desire will arise in his mind that he should do what he is being directed to do that is give specimen handwriting. Even though there is compulsion in this case still there is a positive volitional act done by him namely a positive act of giving specimen handwriting for which a desire has arisen in his mind on account of compulsion applied to him. Therefore as explained by the Supreme Court giving of testimony is based on a positive volitional act by the person concerned. It may be either voluntary volitional act or a volitional act done under compulsion. In either case it is a volitional act and if the volition is to do a certain thing then the accused person does a positive act. So if the effect of compulsion is to induce the accused person to do a positive volitional act then only he is said to furnish evidence which would be tantamount to saying that he is made a witness. However if despite compulsion he does not do anything if he is prepared to suffer the consequences of refusal to do what be is directed to do then obviously he does not furnish any evidence even though there is compulsion applied to him. However if despite compulsion he does not do anything if he is prepared to suffer the consequences of refusal to do what be is directed to do then obviously he does not furnish any evidence even though there is compulsion applied to him. In a case where compulsion is applied to him not with a view to induce him to do any positive volitional act then even though he is compelled he is not asked to furnish evidence and therefore there is no compulsion on him to be a witness. In the instant cases what is the nature of compulsion to the petitioners ? Under the provisions of sec. 129 (A) of the Act all that the accused person is required to do because of compulsion is to produce himself before the registered medical practitioner and to submit himself to the medical practitioner for withdrawing blood from his body. He is not compelled to do any positive volitional act of his own except to the extent that he should submit himself to the medical practitioner for the purpose of withdrawing blood from his body. A mere production of himself even if it can be called a positive volitional act has by itself no effect of furnishing any evidence much less any evidence against himself. It is however a positive act of the medical practitioner namely the physical examination of the body of the accused person or the withdrawal of blood by the medical practitioner from the body of the accused person which ultimately furnishes evidence to the prosecution. This evidence is not furnished by any positive volitional act of the accused. Therefore. even though there is compulsion applied to the accused person that he should not obstruct or resist being produced before a medical practitioner and that he should not resist his medical examination or withdrawal of blood from his body the compulsion has no effect of compelling him to do any positive volitional act so as to furnish evidence to the prosecution. Therefore in view of the observations of the Supreme Court stated above in our opinion even though compulsion is applied to the accused person not to obstruct his being produced before the medical practitioner there is no compulsion applied to him to give any testimony much less any testimony against him. Therefore in view of the observations of the Supreme Court stated above in our opinion even though compulsion is applied to the accused person not to obstruct his being produced before the medical practitioner there is no compulsion applied to him to give any testimony much less any testimony against him. Therefore also in our opinion the provisions of Article 20 (3) of the Constitution are not violated by the provisions of sec. 129 (A) of the Act. We may observe that this point was also raised before the Bombay High Court in the case of The State v. Balwant Ganpati Mulye 63 Bom. L R. page 87 and on a consideration of the effect of compulsion applied under sec. 129 (A) of the Act to the accused person the Bombay High Court also came to the conclusion that the provisions of that section do not compel an accused person to furnish any evidence but the accused person is merely required to submit his body so that the medical practitioner can withdraw blood from his body. The Bombay High Court has also negatived the argument that because of the compulsion provided for in sec. 129 (A) of the Act that section is unconstitutional as offending against the provisions of Article 20 (3) of the Constitution. ( 17 ) IN Criminal Revision Application No. 101 of 1966 it was urged that Rules 3 and 4 of the Rules of 1959 are not complied with. The ground was amplified by saying that according to the Chemical Examiner the seal on the phial was illegible and the phial of blood was not sent to the Chemical Examiner within seven days. We may observe that neither of these two points was taken before the learned Sessions Judge when he heard the appeal. So far as the sending of phial to the Chemical Examiner is concerned there is evidence of Police Constable who says that he took it within seven days and delivered it to the Chemical Examiner at Junagadh. In our opinion neither of these two points can be now urged before us. Even if seals were illegible it would not ipso facto follow that the blood which was examined by the Chemical Examiner was not the blood withdrawn by the Medical Practitioner from the body of the respective petitioner. In our opinion neither of these two points can be now urged before us. Even if seals were illegible it would not ipso facto follow that the blood which was examined by the Chemical Examiner was not the blood withdrawn by the Medical Practitioner from the body of the respective petitioner. ( 18 ) THEN the next point urged before us was that the two petitioners were found having consumed an intoxicant and found on a public road at the relevant time on the same day and each of the petitioners there. fore had committed a distinct offence and therefore the two petitioners should have been tried separately each one for his own offence. The learned Magistrate however tried both the petitioners together and it was urged that such a joint trial of the two petitioners was in violation of the provisions of secs. 233 to 239 of the Criminal Procedure Code. It was further urged that since the trial was in violation of the procedure prescribed in the Criminal Procedure Code the whole trial is bad and should be set aside. The short answer to this argument is that by trying the two petitioners for two distinct offence at one trial the Court joined the charges of both the petitioners and held one trial in respect of the two charges. This joinder of the charges was in violation of sec. 233 of the Criminal Procedure Code and such joinder of charges is not permitted by any of the provisions of secs. 234 to 239 of the Criminal Procedure Code. It can therefore be very well said that there was a misjoinder of charges. Prior to the amendment of sec. 537 of the Criminal Procedure Code by Act No. 26 of 1955 there was a conflict of judicial opinion as to whether such misjoinder of charges amounted to such illegality that the whole trial was void or whether it amounted to a mere irregularity which would be cured under sec. 537 of the Criminal Procedure Code. The conflict was however set right by amending sec. 537 of the Criminal Procedure Code by inserting a new clause (b) in that section. After the amendment of sec. 537 of the Criminal Procedure Code. The conflict was however set right by amending sec. 537 of the Criminal Procedure Code by inserting a new clause (b) in that section. After the amendment of sec. 537 the material part of that section runs as under:-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 no appeal or revision on account (a ). . . . . . . . . . . . . . (b) of any error omission or irregularity in the charge including any misjoinder of charges. Therefore when there is a misjoinder of charges sec. 537 would now come into play and the sentence finding or order cannot be reversed either in appeal or in revision unless there is in fact a failure of justice There is an explanation to sec. 537 which runs as under:in determining whether any error. omission or irregularity in any proceeding under this Code has occasioned a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. The question whether a misjoinder of charges is such an irregularity which can be cured under sec. 537 of the Criminal Procedure Code came up for decision by the Supreme Court in the case of Brichh Bhuian and others v. State of Bihar A. I. R. 1963 Supreme Court page 1120. In that case certain persons were arrested while gambling on a public road and they were taken to the Police Station and at the Police Station there was an altercation between one of the arrested persons and the police. Certain other persons who were working nearby that Police Station on hearing the noise of the quarrel rushed to the Police Station and raided and looted it and assaulted the policemen there. Those persons who were arrested for gambling on a public road earlier were charged with the offence of gambling. The others who were working nearby the Police Station and who took part in raiding and looting the Police Station and assaulting policemen were charged for the offences punishable under secs. 147 452 and 380 of the Indian Penal Code. Those persons who were arrested for gambling on a public road earlier were charged with the offence of gambling. The others who were working nearby the Police Station and who took part in raiding and looting the Police Station and assaulting policemen were charged for the offences punishable under secs. 147 452 and 380 of the Indian Penal Code. It is clear from the facts of this case that the persons who were charged with the offence of raiding looting and assaulting the policemen had nothing to do with the offence of gambling; while some of the persons who were charged with the offence of gambling had nothing to do with the offences of raiding looting and assaulting the policemen. If the provisions of sec. 233 of the Criminal Procedure Code were followed the persons who raided looted and assaulted the policemen should have been tried separately from the persons who were charged for gambling. However a joint trial was held and the question arose before the Supreme Court whether such joint trial was an illegality which vitiated it or was a mere irregularity which can be cured under sec 537 of the Criminal Procedure Code The Supreme Court held that there was only a misjoinder of charges within the meaning of sec. 537 (b) of the Criminal Procedure Code and in the absence of any failure of justice shown by the convicted persons there was no reason to alter or set aside the convictions of those persons. It is therefore very clear from the Supreme Court case that there is only a misjoinder of charges in the present case and nothing more. Such misjoinder of charges has by itself no effect of vitiating the trial. In order to have the trial vitiated the petitioner must further prove that there has been a failure of justice. It was not urged before us that any prejudice was caused to either of the petitioners because of this misjoinder of charges. It is also apparent that the petitioners could and should have raised this objection when the learned Magistrate proceeded to try them at one trial. They have not done so and no reasons are advanced as to why they failed to do so. In our opinion therefore this contention has also no substance. [the rest of the judgment is not material for the reports ]. Applications dismissed. .