ARJUN SHANKAR NAIK Vs. SUMITRA

JUDGEMENT

(1.) The learned Sessions Judge at Panaji has made this reference. The applicant herein is the husband of the respondent Sumitra. The respondent filed petition under Section 488. Criminal P.C. in First Class Magistrate's Court at Quepem stating that her husband was not maintaining her and that he be directed to pay maintenance to her. The learned Magistrate allowed the petition after inquiry. The petitioner herein filed revision application in Sessions Court at Panaji against the order of the Magistrate, stating various reasons and contending that that order was bad in law. In the revision petition he did not state that for the Magistrate not recording his statement under Section 242, Criminal P.C. he was prejudiced or the proceedings had become null and void. After hearing the arguments in revision, the learned Sessions Judge made this reference to this Court stating that the Magistrate did not record the statement of the revision petitioner under Section 242, Criminal P.C., that as such as per the decision of this Court in reference No. 101 of 1966 (Goa) the entire proceedings have become null and void, that the order of the Magistrate is fit to be set aside and that the matter is fit to be remanded to Magistrate's Court to decide the case as per law after complying with the provisions of Section 242 Criminal P.C.

(2.) The point for determination is whether the proceedings have become null and void due to the Magistrate not recording the statement of the petitioner herein under S.242, Criminal P.C.

(3.) Chapter 45 of the Criminal P.C. deals with the irregularities which vitiate or do not vitiate the proceedings. In that chapter it is not mentioned that if in a case filed under Section 488, Criminal P.C. the respondent is not examined under Section 242, Criminal P.C. the proceedings are vitiated. It is clearly laid down in Section 537, Criminal P.C. that any error or omission or irregularity in the complaint, summons, warrant, proclamation, order, judgement, or other proceedings before or during trial or any inquiry or other proceedings under the Criminal P.C. will not be reversed or altered under Chapter 27 or on appeal or revision unless such error or omission or irregularity etc. has in fact occasioned a failure of justice. In the case on hand, the learned advocate appearing for the revision petitioner stated in this Court that he had not contended in the Sessions Court that the proceedings were vitiated for his client not being examined under S.242, Criminal P.C. When the revision petitioner himself does not contend that he was prejudiced by his not being examined under S.242, Criminal P.C., it cannot be said that there was failure of justice. It is against law in this case to say that the proceedings are vitiated due to the Magistrate not examining the revision petitioner under S.242, Criminal P.C.