P.K.Goswami, J. -
(1.) THIS reference is by the learned Sessions Judge, U. A. D., at Jorhat recommending quashing of an order of conviction under Section 323, Indian Penal Code passed by the learned Judicial Magistrate, First Class Colaghat.
(2.) THE facts briefly are that on 12 -6 -1969 the complainant went to the accused, who was a Clerk in the Post Office, in connection with some entries in the pass book. There some altercation took place and the complainant, who happens to be the President of the Goan Panchayat, felt nettled and humiliated by the conduct of the accused who wanted him to clear out of the office by abusing him. On the next day when he was at a certain place near the Badulipara petrol pump the accused assaulted him in presence of witnesses. He, therefore, brought a complaint before the Magistrate on 27 -6 -1969 and the Magistrate after making a preliminary enquiry under Section 202, Criminal P. C. summoned the accused under Section 323, Indian Penal Code. In course of the hearing 5 prosecution witnesses were examined including the doctor. The accused was examined under Section 342, Criminal P. C. at the close of the prosecution and a defence witness was also examined. The accused denied having assaulted the complainant. The defence evidence was rejected by the learned Magistrate and on the evidence of the prosecution witnesses, which was believed, the learned Magistrate convicted the accused. The accused then went in revision before the learned Sessions Judge, who has recommended by this reference to set aside the conviction and sentence. The only ground which the learned Sessions Judge has given and which is pressed into service by Mr. Choudhuri appearing on behalf of the accused, is that on the date the accused entered appearance in answer to the summons, the allegations of the complainant were not put by the Magistrate to the accused under Section 242, Criminal P. C. Mr. Choudhuri, therefore, submits that there is a clear violation of Section 242, Criminal P. C. which has vitiated the entire trial. Mr. Choudhuri, also submits that there is no adequate compliance with the provisions of Section 342, Criminal P. C. After the amendment of the Criminal P. C. in 1955, two new sub -sections have been added to Section 204 of the Code of Criminal Procedure. We are concerned only with Section 204(1 -B), which may be quoted.
204 (1 -B) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under Sub -section (1) shall be accompanied by a copy of such complaint.
Mr. Choudhuri has very fairly admitted that the accused has been served with a copy of the complaint along with the summons. When, therefore, the accused entered appearance in answer to this summons, he had a fair idea of the allegations made against him, on the basis of which the summons was issued under Section 204, Criminal P. C. for an offence under Section 323, Indian Penal Code. The accused also had not taken this objection immediately at the close of the prosecution when he was examined under Section 342, CrIPC or even at the earlier stage when the prosecution evidence was recorded. We are therefore, required to consider whether in this case the accused can be said to have been materially prejudiced in his defence for not stating the substance of the accusation to him on the date he first appeared before the Magistrate in obedience to the summons. This leads us to consider Section 537 of the Code of Criminal Procedure. Under that section, no finding, sentence or order passed by a competent Court of jurisdiction shall be reversed or altered on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code. It is true that this is subject to the provisions hereinbefore contained, which include Section 242, Criminal P. C. Even so, the order; will not be set aside in view of this provision under Section 537, Criminal P. C. "un -less such error, omission, irregularity, or mis -direction has in fact occasioned a failure of justice." There is an Explanation attached to the section, which may be also quoted:
Explanation : In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
I have already mentioned that no objection was taken to non -compliance with Section 242, Criminal P. C. at any earlier stage. The accused was defended by Counsel and it would have been appropriate for the Counsel, who is expected to know the law. to point out to the Court about non -compliance with the procedure which was fioing to cause prejudice to the accused, if he thought so. It cannot be expected that the Bar will not assist the Court in the administration of justice, particularly in the matter of procedure with which they are more familiar than Magistrates who, some time, may even overlook a provision. Even prior to the amendment of 1955, the Privy Council had to deal with violation of the provisions of the Code. We may in this context refer to the case of Pulukuri Kottaya v. Emperor, reported in, AIR 1947 PC 67 :, 48 Cri LJ 533 where the Privy Council observed as follows :
When a trial is conducted in a manner different from that prescribed by the Code as in the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under Section 537, and none the less so because the irregularity involves, as much nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind.
As stated earlier, this was a decision taken after considering the provisions of the Code even prior to the amendment of 1955. The amendment of 1955, as mentioned at the outset, may be said to have affected the position, so far as pertaining to violation of Section 242, Criminal P. C. Now a summons on any accused person has to be accompained by a copy of the complaint. Therefore, when he appears in Court in obedience to such a summons, which will not be even issued by the Court unless steps are taken to submit the processes in proper form, the accused is well aware of the allegations made against him. In such a position if later on at the close of the prosecution Section 342, Criminal P. C. has been complied with, it cannot be said that accused has been prejudiced in his defence. But, says Mr. Choudhuri, that in this case Section 342, Criminal P. C. has been flagrantly violated. We will, therefore, deal with this objection. The learned Magistrate at the close of the prosecution case put this question to the accused :
The witnesses and the complainant have stated that on 13 -6 -1969 you assaulted the complainant Bapiram Bora. Do you plead guilty or not guilty? What do you say?
The accused answered, "I have not assaulted. Not guilty." Besides, the accused has also given a defence witness, after understanding the allegations, to establish his innocence. This is a simple case where the charge is of assaulting the complainant. That allegation is sufficiently brought home in the short questions put by the Magistrate under Section 342, Criminal P. C. The accused has answered, "I have not assaulted." He has also produced a defence witness to establish his innocence to the charge. This is, therefore, not a case where, in the entire background of the circumstance, the accused can claim to have been prejudiced in his defence. Both the submissions of Mr. Choudhuri fail.
(3.) THE reference is, therefore, rejected.;