EMPEROR Vs. JODHRAJ

JUDGEMENT

(1.) THE police challaned three persons under Section 295,. I. P.C. (wrongly shown as Section 195 in the Sessions Judge's reference.) The Magistrate discharged the three accused under Section 253, Criminal P.C. The Sessions Judge gives the grounds for his reference as follows: The Magistrate has not complied with the provisions of Section 539' (B), Criminal P.C. It is submitted that this is an illegality which vitiates the trial. I have no authority expressly on the point, but I refer to Hirday Govinda Sur v. Emperor . In this case it seems to me likely that the complainant has been prejudiced. The complainant prayed for revision on other grounds, but these I do not consider to have any substance.

(2.) THAT case lays down that the omission to place 6n the record the memorandum of a local inspection is an illegality vitiating the conviction. In the present case the inspection-note of the Magistrate is on the record, but the Sessions Judge thinks that he did not give notice to the parties and, therefore, the discharge of the accused is illegal. It would have been well if he had asked the Magistrate for an explanation before submitting this reference. I have the Magistrate's explanation before me and this shows that he did give previous notice to visit the spot and that the Prosecuting Inspector and the accused's pleader were present at the time of his visit. It seems, to me that the provisions of Section 539 (B) have, therefore, been complied with. It is unnecessary to go into the other allegations made by the complainant before the Sessions Judge, as the Judge does not base the present reference on them.