P L D 1960 Dacca 551 (PLP)

ISPAHANI, C. J.‑This is a Reference made by a Division Bench for opinion whether a trial held with misjoinder of charges is a mere defect in procedure or is an illegality which is not curable and which calls for an interference by way of a Writ of certiorari. The reference was necessary because another Division Bench of this Court was of opinion that a mis joinder of charges is a mere defect in the procedural law which did not vitiate the trial and did not call for an interference by way of a Writ of certiorari. There are two decisions to that effect, one is the unreported decision in Anwar Hossain Talukdar v. The Province of East Pakistan (Writ Petitions Nos. 15 and 16 of 1958 (unreported)), and the other in the case of Bharat Tewari v. Special Magistrate Dinajpur (P L D 1958 Dacca 48 (3) ).

2. The question of misjoinder of charges has been agitated in many Courts and it will be sufficient to refer to N. A. Subramania Iyer v. King‑Emperor reported in ((1901) 28 IA 257). It was held therein that section 234 of the Criminal Procedure Code, which provides that a person may only be tried for three offences of the same kind if committed within a period of twelve months, is plainly contravened by trying an accused on an indictment charging him with more than three offences. A trial so conducted is plainly prohibited and illegal, and a conviction so obtained must be set aside. This decision has been followed by our Federal Court and the matter is concluded by a decision of the Federal Court of Pakistan in the case of Qadar Dad arid others v. Sultan Bibi reported in (P L D 1956 F C 129). It was held therein that where the trial is found to have been con ducted in a way not authorised by law and by the rules of pro cedure relating to matters of a fundamental character, the decision in such a trial whether of conviction or of acquittal is of little consequence and the entire proceeding must be set aside irrespec tive of any question of prejudice to anyone. The disregard of an express provision as to the mode of trial concerning a vital matter cannot be treated as an irregularity curable under section 537, Cr. P. C. The decision in Subramania Iyer's case was referred to. This decision is binding on us as also a later decision in Md. Mosadar Hoque v. The State reported in (P L D 1958 S C (Pak.) 131), in which it was held infer alia that the joint trial of the appellants in that case was illegal and no question as to whether prejudice was caused or not need be considered as illegality had resulted from adopting a mode of trial prohibited by the Code and, therefore, it could not be cured under section 537 of the Code of Criminal Procedure.

3. In view of the decisions mentioned above it is well settled now that any disobedience of the provisions of section 234, Criminal Procedure Code cannot be cured under section 537, Cr. P. C. and a misjoinder of offences is an illegality vitiating the whole trial unless the same can be brought under any of the excep tional clauses of the Criminal Procedure Code.

4. This being the legal position, it is to be considered whether in such circumstances a Writ of certiorari should issue. Mr. Abdulla, who appeared on behalf of the petitioners, con tended that in the present case as the Court concerned passing the impugned order did so in excess of its jurisdiction, the petitioners are entitled to relief by way of a Writ of certiorari. He admitted that it was not a case of want of jurisdiction. In the Tariy Transport Company, Lahora v. The Sargodha‑Bhera Service Sargodha reported in (P L D 1958 S C (Pak.) 437), Munir, C. J., observed as follows :‑-- "If a tribunal has no jurisdiction either in respect of the subject‑matter of litigation or the parties before it or the territory to which the dispute relates or because of its own defective constitution or the illegality of the order, the proceed ings are void ab initio and an appeal in such a case is an unnecessary step and mere prolongation of the proceedings which eventually the Court must hold to be void for lack of jurisdiction. In such cases certiorari acts as would a Court of Equity. Thus there have been several cases in England where certiorari was granted if the Tribunal had acted without jurisdic tion, though a right of appeal existed . . . . . . But where appeal does lie, in order to quash a proceeding by certiorari, it is necessary that the lack of jurisdiction should appear on the face of record . . . . . ." At page 464 Shuhabuddin, J., observed as follows: "on the other band, it is clear from the following passage in Halsbury's Laws of England, Third Edition (paragraph 108 of Vol. 11 that the Court should be moved by an application `

108. Many statutes contain provisions substituting for the orders of mandamus, prohibition and certiorari a different procedure for bringing before the Court matters or questions arising under the statute. A common f6im is a provision that if any person aggrieved by an order made under the Act desires to question the validity thereof on the ground that it is nut within the powers of the Act or that any requirement of the Act has not been complied with, he may make an application to the Court; and the Court may, if satisfied that the order is not within the powers of the Act or that the interests of the applicant have been substantially prejudiced by any requirement of the Act not having been complied with, quash the order ; but that save as aforesaid the order shall not be questioned by prohibition or certiorari or in any legal proceedings whatsoever." In Messrs S. A. Haroon and others v. The Collector of Customs, Karachi reported in (P L D 1959 S C (Pak.) 177), at page 194 Rahman, J., observed as follows: "At the same time it was recognised as an exception that in cases of absence or excess of jurisdiction or where the impugned order suffered from illegality, on the face of the record a certiorari may be granted even though the right of statutory appeal had not been availed of . . . ." In G. Veerappa Pillai v. Raman and Raman Ltd., reported in (A I R 1952 S C 192 at pp. 195 and 196), the Court observed as follows: "Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made." Lastly reference may be made to T. C. Basappa v. T. Nagappa reported in (A I R 1954 S C 440 at p. 444) it was observed: "A tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A Writ of certiorari may be available in such cases. An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision."

5. In the present case it was conceded that there was a misjoinder of charges and in view of the decisions of our Supreme Court, such misjoinder is an illegality vitiating the entire proceed ings. A Writ for certiorari will issue only in cases of want of jurisdiction or excess of jurisdiction and also in cases of illegality not curable under section 537 of the Criminal Procedure Code. But such illegality must not entail any enquiry into the facts in the case but must be patent on the face of the record. If an enquiry is necessitated to question the illegality in the case, in that event it cannot be said that the illegality is patent on the face of the record.

6. Our answer to the question before us, therefore, is that a Writ of certiorari will issue in cases of misjoinder of charges which is an illegality provided that the misjoinder appears on the face of the record. It will, therefore, be for the Division Bench to consider whether the illegality complained of is patent on the face of the record and dispose of the Writ petition according to law. The costs of this Reference will abide the result. ASIR, J.‑I agree with my Lord the Chief Justice. SATTAR, J.‑I agree with my Lord the Chief Justice. A. H. Reference answered.