SHIVA SHANKER UPADHYAYA Vs. CHANDRIKA

JUDGEMENT

(1.) This is a reference by the learned Additional Sessions Judge of Banaras recommending that the order dated the 30th September 1953 passed by a first class magistrate of that district dismissing the case without going into its merits and allowing the complainant to file a fresh case on the same facts and acquitting the accused, might be set aside, and that the case might be sent back to the trial court for disposal according to law.

(2.) It appears that a complaint was filed by one Shiva Shanker Upadhyaya on the 13th February 1953 against the accused Under Section 147, 325/ 149, 323/ 149 and 307 I.P.C. The complainant was not examined by the learned Magistrate according to the provisions of Section 200 Code of Criminal Procedure He was, however, summoned some time after the complaint had been filed and was examined on oath. Thereafter the accused were summoned and the prosecution produced their evidence and a charge was framed against the accused. The accused cross-examined the prosecution witnesses and arguments ware heard in the case and a date was fixed for delivery of the judgment. It; was on the date of the judgment that the learned Magistrate realised that as the complainant had not been examined under the provisions of Section 200 Code of Criminal Procedure it was a fatal defect and the prosecution case was liable to be dismissed. Accordingly he dismissed the complaint, acquitted the accused and allowed the complainant to file a fresh complaint in respect of the same cause of action. It is against this order that a revision was filed before the learned Sessions Judge and the learned Sessions Judge relying on several decisions of this Court, as well as of other High Courts, came to the conclusion that the omission to examine the complainant Under Section 200 Code of Criminal Procedure was merely an irregularity and not an illegally and, therefore, did not vitiate the trial. He was also of the opinion that after the charge had been framed against the accused they could be acquitted only if the prosecution case was not made out against them. He has, therefore, made this reference.

(3.) I have heard the learned Counsel for the parties and have also gone through the judgments of the courts below. It appears from a perusal of the judgment of the learned Sessions Judge that one of the cases relied on by him in support of his view is Baldeva v. Emperor,1953 AIR(All) 816. I have looked into this volume but I have not been able to find any such case as Baldeva v. Emperor,1953 AIR(All) 816, nor there is any such page as 816. This volume ends with page 800. It appears that the reference given by the learned Sessions Judge is wrong and before making the reference he has not cared to satisfy himself about the case relied on by him. In Bateshwar v. Emperor, 13 A.L.J.R. 840 it was held by a Division Bench of this Court that the failure by the magistrate to examine the complainant Under Section 200 Code of Criminal Procedure was not illegality but merely an irregularity and did not vitiate the entire proceedings. I am inclined to agree with the view of the learned Sessions Jude that the failure of the Magistrate to examine the complainant Under Section 200 Code of Criminal Procedure does not vitiate the entire proceedings as,it is merely an irregularity and is not an illegality. Moreover, I do not think that the learned Magistrate was justified in acquitting the accused without going into the merits of the case after he had framed the charge in the case.