PUBLIC PROSECUTOR Vs. VAIJNATH

JUDGEMENT

(1.) The question referred to us is whether the 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, Criminal Procedure Code.

(2.) There has been a consensus of judicial opinion on this question referred ever since the decision of the Privy Council in N.A. Subrahmanya Aiyer v. Emperor, (1901)L.R. 28 I.A. 257 : L.R. 25 Mad. 61 : 11 M.LJ. 233. The question did not directly arise in that case, but the principle was enunciated that the disobedience to an express provision as to a mode of trial could not be regarded as a mere irregularity. That was reiterated in Pulukuri Kotayya and others v. Emperor, I.L.R. (1948) Mad. 1 : (1947) 1 M.LJ. 219 ILR. 74 LA. 65 : A.I.R. 1947 P.C. 67. The pronouncement in the later case was more clear that when a trial was conductede 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 has, however, been directly answered in a series of cases. It is to refer to Emperor v. Chinnapayan, (1906) I.L.R. 29 Mad. 372. and the cases thereafter. That was a case where a warrant case was tried as a summons case and the accused was convicted. The learned Judge set aside the conviction holding that that was something more than an 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, A.I.R. 1932 Nag. 111. Sufal Golal v. Emperor, A.I.R. 1938 Cal. 205. and Bandulal Balaprasad v. The State, A.I.R. 1962 Bom. 258. The said decisions have held the view that trial was not conducted as prescribed by the Code when a warrant case was tried as a summons case and the trial was therefore vitiated.