P L D 1952 Azad J & K 13 (PLP)

ABDUL MAJID, C. J.‑In this case the judgment of the second class Magistrate is certainly open to criticism that it does not comply with the provisions of section 539‑B Cr. P. C. in as much as he visited the place where the bana‑shikni had occurred but recorded no memorandum as required by this section. On the other hand he stated in the judgment that the evidence of the eye witnesses of the incident which was believed only as regards the commission of an offence under section 426 A. P. C. by the respondents and not as regards the commission of an offence under section 352 A. P. C. was reliable, because it was supported by the result of the inspection. The mere failure to record a memorandum is no doubt an irregularity cured by section 537 Cr. P. C. and, does not vitiate the proceedings but if it occasions a failure of justice then it is not irregularity but an illegality which cannot be condoned. A I R 1924 Cal. 1035 lays down that the pro visions of section 539‑B are mandatory and failure to comply with any one of them is an illegality and not irregularity which could be cured if it is held that there was no prejudice to the accused. This view was however modified in other cases decided by the several High Courts and it was held that the mere omission to record a memorandum under section 539‑B Cr. P. C. is not an illegality vitiating the proceedings but it is an irregularity which amounts to an illegality if results in prejudicing the accused. I agree with the latter view which appears to me to be sound In the present case, the petitioners were clearly prejudiced by the memorandum not having been recorded by the trial Magistrate after the inspection of the spot. In the first ‑ instance the judgment was pronounced one and a half month after the inspection of the spot and no evidence was recorded in the meantime. It is not reasonable to suppose that the Magistrate re membered at the time of giving judgment what he had seen at the spot. Secondly the oral evidence led by the complainant had been disbelieved by the Magistrate as to the main incident and it was believed only with respect to an offence under section 426 A. P. C. because it stood corrobora ted by the result of the inspection of the spot. The inference is that at the time of writing the judgment the trial Magistrate imposed his own knowledge of the facts and became the princi pal witness in the case so far as the conviction of the accused was concerned which was not legal. If the trial Magistrate had placed upon record the result of his inspection at once, the respondents might have got an opportunity of seeing what the facts were which had been observed on the spot. The trial Magistrate thus gave the judgment without giving an oppor tunity to the respondent to rebut his opinion which he had formed at the time of the inspection of the spot about the evidence led in the case. I have therefore, no hesitation in holding that the failure of the Magistrate in recording the memorandum of his local inspection in the present case was an illegality vitiating the proceedings. A further objection has beer, made that the trial Magis trate did not describe himself as a Magistrate while signing the judgment but only noted that he was a Mufti though he is invested with second class Magisterial Powers. This however is an omission which can be condoned as it does not materially affect the case either way. For the above reasons, I set aside the conviction and the sentence of fine passed on each petitioner and direct that they be retried according to law. The file to be sent back to District Magistrate for making over the case to some other competent Magistrate, The parties are directed to appear before the District Magistrate on 22nd instant. The fine if any paid by the respondents will be refunded. A. H. Retrial ordered.