Meredith, J.The appellant, Chintaman Rai, has been convicted u/s 302, Penal Code, and sentenced to transportation for life. The appellants, Sheuji Rai and Ramsarekh Rai, have been convicted u/s 214 of the Code, and sentenced to pay fines of Rs. 200 each, or in default, to suffer six months rigorous imprisonment each. Pour other persons, who were also on trial upon the charge u/s 214 have been acquitted.

2. The prosecution case, very briefly stated, is as follows. The appellant, Chintaman Rai, who is one of the cosharer landlords of village Bharthua, had an illicit intrigue with a Maho-medan girl named Khodaija living in Ali nagar tola, situated about a mile from the main village of Bharthua. On the evening of 20th January 1944, Chintaman went to the village to visit the lady. He passed by a house in which lived a boy of 15, Abdul Rahman, who has been killed, his brother Mahmud who was the first informant, and his mother, Mt. Haliman. As he passed, at about 9 P. M" Chintaman heard Haliman making certain disparaging remarks about the landlords. He took exception to this; and beat the woman. He then went on to Khodaijas house. Abdul Rahman and his mother decided to go to one of the other landlords, Kishori Rai, and make a complaint regarding Chintamans conduct. Just after they had set out, however, Chinta-man appeared, and told them they must not go. Tney persisted in going, whereupon Chinta-man called out to one Majrul, brother of the girl Khodaija, to bring his sword-stick (gupti). This was done, and Chintaman then beat Mt. Haliman with the sword-stick in its scabbard, and she fell down. This incensed the boy Abdul Rahman, who said he would not tolerate these assaults on his mother and rushed up abusing Chintaman, whereupon Chintaman drew his weapon from the scabbard and struck Rahman in the left side of the breast, inflicting a wound 6 1/2 inches deep and penetrating the spleen and the stomach. Rahman was taken into his house, and during the night his condition became bad. His brother, Mahmud, was making arrangements to take him to the police station Katra, 13 or 14 miles distant, in the morning, when the appellants Sheuji Rai and Ramsarekh Rai, and others of the village landlords, who have been acquitted, came up and tried to prevent the matter being reported at the thana, ,by offering a bribe of two kathas of land and a sum of Rs. 10. By noon, however, Rahmans condition had become very bad, and the landlords went off. Mahmud then started for the thana, but at Maulanagar, one mile upon his way, Rahman died. His dead body was taken back home, and Mahmud then proceeded to the police station and lodged information at about 9 P.M.

3. I do not propose to deal at all with the evidence and the facts as regards Chintaman Rai, and I also consider it unnecessary to set out or to deal with his defence, because for a reason which I shall presently give, the conviction will have to be set aside and a retrial must be ordered.

4. With regard to the convictions u/s 214, in my opinion, the evidence is insufficient to support them. It is quite true that a number of the village witnesses have said that a bribe was offered, but in the first information there is no reference to the offer of any bribe. On the contrary, it is said that an attempt was made to prevent information being lodged by persuation and threats, and it was made only by Sheuji Rai and Ramsarekh Rai. There is no mention of the other four. It must be remembered that in the morning no one was likely to have realised the seriousness of Rahmans condition. If an attempt was made at all to hush up the case, it may well have been under impression that it was merely a case u/s 824 of causing hurt and such a charge would be compoundable with the consent of the Court. The evidence to show that Sheuji and Ramsarekh Rai were guilty of any offence u/s 214 is, therefore, unsatisfactory. In the circumstances I would allow the appeal in their case, set aside their convictions and sentences, and acquit them. A point has been taken that the trial was vitiated by misjoinder, and that point must, in my opinion, succeed. Section 283, Criminal P. C, provides that 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 Sections 234, 235, 236 and 239. The first three of these four sections have no possible application to the present case. If the trial is to be validated at all, it can only be u/s 239, and it has in fact been contended for the Crown that the case is covered by Section 239, Clause (d), which says that persons accused of different offences committed in the course of the same transaction may be charged and tried together. I am unable to hold, however, that this is a case of different offences in the course of the same transaction. The prosecution has not sought to prove that there was any conspiracy between the different persons tried ; that those who attempted to get the matter hushed up were acting in concert with Chintaman. No attempt has been made to prove any continuity of purpose as between them, and it is perfectly possible that Chintaman had no knowledge at all of what might have been done by his cosharer landlords on his behalf. The killing of Rahman on the previous evening was certainly not the same transaction as an attempt to prevent information being lodged regarding the crime the following day. In my opinion, the case cannot possibly be brought within Section 239 (d).

5. The question is, assuming that there has] been a contravention of the provisions of Section 233, what is the effect. It may be taken as settled in this Court that the effect is to vitiate the trial, and that this is not a question of an irregularity which can be cured under the provisions of Section 537 of the Code if there has been no prejudice. I will refer only to two decisions of this Court and the decision of the Privy Council upon which they are based. In the case of Tepanidhi Gobinda Chandra v. Emperor AIR 1920 Pat. 230 it was laid down that

if accused persons have been wrongly tried together in respect of offences which cannot be jointly tried together legally in point of law, the conviction so obtained against them is illegal and void and cannot stand. It is not a mere irregularity; it is a question of substance, and not of form. The ruling of their Lordships of the Privy Council has laid the contest regarding this question at rest; and it is not open now to debate or discussion notwithstanding the earlier decisions in the Calcutta High Court.

6. The reference to the Privy Council ruling is, of course, to Subramania Iyer v. Emperor (02) 25 Mad. 61, in which their Lordships laid down that a trial conducted in contravention of the provisions of Section 234, Criminal P. C, is plainly prohibited and illegal, and the conviction so obtained must be set aside. In the course of their judgment their Lordships said that

they were 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 a longer period than by law could have been joined together in one incident.... 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.

7. The other Patna case to which I wish to refer is Nathu Chaudhury and Others Vs. Emperor, . In that case a Bench of this Court to which I was a party held that the infringement of the provisions of Section 239 (d) would, if made out, constitute an illegality as distinguished from an irregularity, so that the conviction would require to be quashed and Section 537 can be of no avail to remedy the defect.

8. In my opinion, the trial of Chintaman Rai was vitiated by this illegality to which I have referred, and I would therefore set aside the Conviction and direct that Chintaman Rai be retried upon the charge u/s 302, Penal Code.

Sinha, J.

9. I agree.