SITARAM GOPE Vs. EMPEROR

JUDGEMENT

(1.) The petitioner was convicted Tinder Section 411/75, Indian Penal Code, and sentenced to rigorous imprisonmnent for two years by the Subdivisional Magistrate of Madhubani. An appeal against that order was dismissed by the Additional Sessions Judge of Dar-bhanga, who heard the appeal.

(2.) It appears that the case was originally tried by a Magistrate with second class powers at Madhubani on the charge under Section 411, Indian Penal Code. On the completion of the trial, it was discovered that the accused had a previous conviction under Section 379, Indian Penal Code. Therefore, under the provision of Section 349, Criminal P.C., the trying Magistrate submitted the record to the Subdivisional Officer as in the opinion of the trying Magistrate the accused was liable for more severe sentence than he was competent to award. When the record of the case was submitted to the Subdivisional Magistrate be resummoned three of the prosecution witnesses for further examination and also summoned one new witness. These witnesses were examined and cross-examined.

(3.) The accused was examined under Section 342, Criminal P.C., on the completion of the prosecution evidence in the Court of the Magistrate with second class powers. But when fresh evidence was taken by the Sub-divisional Magistrate the accused was not asked anything after further examination of the prosecution witnesses. It is contended on behalf of the petitioner that the failure of the Subdivisional Magistrate to examine the petitioner after fresh evidence was taken in the Court of the Subdivisional Magistrate was an illegality and not an irregularity which could be cured under the provisions of Section 537 and, therefore, the conviction of the petitioner was illegal.