Mandatory joinder breach invalidates trial; saving clause cannot cure it, and retrial may follow after conviction is set aside.

Mandatory joinder rules under the Code were breached where a cheating-by-personation charge was tried together with murder and robbery charges without forming part of the same transaction. The joint trial was therefore unlawful, and the saving provision could not cure a trial illegal from the outset because the defect went to the root of the proceedings. The appellate court further held that, after setting aside the conviction, it could direct retrial on the original charges, including counts earlier treated as acquitted, because an appeal from conviction keeps the trial open in law.

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Issues: (i) Whether the joint trial of the cheating charge with the murder and robbery charges was a misjoinder of charges in breach of the mandatory rules of joinder; (ii) Whether such misjoinder was cured by the saving provision in the Code of Criminal Procedure, 1898; (iii) Whether, after setting aside the conviction, the appellate court could order a retrial on charges on which the accused had already been acquitted.

Issue (i): Whether the joint trial of the cheating charge with the murder and robbery charges was a misjoinder of charges in breach of the mandatory rules of joinder.

Analysis: Separate trial is the general rule under the Code, and joinder is permitted only within the defined exceptions. The cheating by personation charge was distinct from the murder and robbery charges and was not shown to form part of the same transaction. Mere proximity in time or the fact that the accused had obtained entry into the complainant's house by deception did not establish the required continuity of purpose or nexus between the offences.

Conclusion: The joinder of the cheating charge with the murder and robbery charges was unlawful.

Issue (ii): Whether such misjoinder was cured by the saving provision in the Code of Criminal Procedure, 1898.

Analysis: The saving clause was held to apply to irregularities in a lawful trial, not to a trial that was illegal from the outset because the statute positively prohibited the mode of trial adopted. The breach went to the root of the proceedings and was treated as a material defect affecting the fairness of the trial. The later authorities dealing with minor procedural irregularities did not alter the rule where the very joinder of charges offended the mandatory scheme of the Code.

Conclusion: The misjoinder was not cured by the saving provision and the trial was vitiated.

Issue (iii): Whether, after setting aside the conviction, the appellate court could order a retrial on charges on which the accused had already been acquitted.

Analysis: An appeal from conviction was treated as a continuation of the trial, and once the conviction and sentence were set aside, the whole matter reopened. The court preferred the earlier line of authority holding that the appellate power to order retrial was general and not confined to the single count on which conviction had been recorded. Section 403 was held not to bar a retrial in such circumstances.

Conclusion: The appellate court could direct retrial on the original charges, including those earlier recorded as acquitted.

Final Conclusion: The conviction and sentences were set aside and a retrial was directed on the murder and robbery charges, with a separate retrial on the cheating charge if the prosecution chose to proceed.

Ratio Decidendi: A trial conducted in direct breach of the mandatory joinder rules is illegal and not curable under the general saving clause, and when such a conviction is set aside the appellate court may order a retrial on the original charges because the appeal keeps the trial open in law.

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