SHRAWAN MAHAR Vs. RAJESHWAR KHANDOPANT PAGE

JUDGEMENT

(1.) 1. This is an application for revision of an order passed by the Magistrate of the 1st Class, Nagpur, remanding Criminal Case No. 39 of 1927, in the Court of the 2nd Class Magistrate, Ramtek, for further trial. The basis of the order of the remand was the fact that the Magistrate had not complied with the provisions of Section 256, Criminal P.C., and the 1st Class Magistrate was of opinion that the procedure of the 2nd Class Magistrate had resulted in a miscarriage of justice.

(2.) ALL that has been urged in the present application for revision is that the provisions of Section 255, Criminal P.C., are directory and not mandatory, and that the remand of the case for a retrial was unnecessary. I find it unnecessary, in the circumstances of the case, to decide whether, in my opinion, the provisions in question should be considered as merely directory. There is considerable authority for the latter view, e.g., in Mt. Ghasiti v. The Crown A.I.R. 1926 Lah. 155, as well as in various unreported cases. Obviously, however, assuming the decision in the Lahore case to be a correct exposition of the law, and assuming what has occured to have been a mere irregularity, the 1st Class Magistrate has further held that the irregularity in question has caused a failure of justice. On the facts stated by the 1st Class Magistrate I am in full agreement with the latter view, and it follows, therefore, that the case has been correctly remanded to the Court of the 2nd Class Magistrate for a retrial. I am unable, therefore, to interfere, and dismiss the application without notice to the non-applicant.