PUBLIC PROSECUTOR A P P Vs. VAIJNATH ACCUSED

JUDGEMENT

(1.) The question referred to us is whether adoption by the trial Magistrate of summons procedure in a warrant case amounts to an illegality vitiating the entire trial or only an irregularity curable under Section 537 Cr.P.C.

(2.) There has been a consensus of judicial opinion on this question referred ever since the decision of the Privy Council in N.A. Subramania Iyer v. Emperor, (1901) 28 Ind App 257 (PC). The question did not directly arise in that case but the principle was enunciated that the disobedience to an express provision at to a mode of trial could not be regarded as a mere irregularity. that was retired in Pulukuri Kotayya v. Emperor, AIR 1947 PC 67. The pronouncement in the later case was more clear that when a trial was conducted in a manner different from that prescribed by the Code, the trial was bad and no question of curing an irregularity arose.

(3.) The question now referred to us, that, however, been directly answered in a series of cases. It is sufficient to refer to Emperor v. Chinapayan, (1906) LIR 29 Mad 372 (4 Cri LJ 231) and the cases thereafter. that was a case where a warrant case was tries as a summons case and the accused was convicted. The learned Judge set aside the conviction holding that that was something more than irregularity and that the accused might have possibly been prejudiced by the procedure adopted by the Magistrate. The other cases which have held the same view are Gaya Prasad v. Emperor, AIR 1932 Nag 111-Sufal Golai v. Emperor, AIR 1938 cal 205 and Bandulal Balaprasad v. The State, AIR 1962 Bom 258,. The decisions not conducted as prescribed by the Code when a warrant case was tried as a summons case and the trial was therefore vitiated.