P (PLP)

A. I. R. 1935 All. 627 ; 8 B 200; 7 Cal. 96; A. I. R. 1938 P. C. 113; 12 Cr. L, J.

320. ORDER.‑--A chalan under sections 148, 332, 334 was instituted in the Court of Malik Abdul Rashid, Magistrate 1st class with section 30 powers, Ahmedpur East. Out of the large number of the accused the case proceeded only against

16. Out of these 16 9 were charged on 15th of May 1948. No order of discharge in favour of the other 7 is traceable on the file. After the charge was framed the Magistrate did not proceed under section 2.15(1) of the Criminal Procedure Code. The cross‑examination of the prosecution witnesses however proceeded. Before the cross‑examination could be concluded Malik Abdul Rashid was transferred and was succeed ed by Mr. Abdul Hameed. The accused did not claim trial de novo before that Magistrate, and the proceedings in the case continued from the state it was left by Malik Abdul Rashid. Mr. Abdul Hameed before he could finish the trial was transferred and the case went in the hands of Mr. Noor Ahmed Alvi. The accused did not claim trial de novo in his Court as well. The cross‑examina tion was finished and the case was adjourned from 13th November 1949 to 29th of November 1949, for the examination of the accused. As the Court had no time to take up the case on 29th of November 1949 consequently it was adjourned to 17th of December 1949. On 17th December 1949 Mr. Alvi referred the case to the District Magistrate, Rahimyar Khan, under section 435 Criminal Procedure Code for the cancellation of the charge because the Magistrate (Malik Abdul Rashid) had not followed the provisions of section 255 (1) of the Criminal Procedure Code. It was also pointed out by the learned Magistrate to the learned District Magistrate, Rahimyar Khan that there was no order on the file to discharge the rest of the accused. The file was received as appears from the order of the District Magistrate in his Court on 27th of January 1950 and was sent to this Court by his order dated 11th of June 1950 for the cancellation of the charge. The District Magistrate has also reported that this file was not brought to his notice by the Reader Abdul Aziz during the period of four months when it remained in his office. So far as Abdul Aziz is concerned separate action shall be taken against him. There are two questions before me for consideration, firstly, whether the order of discharge in favour of some accused was passed by Malik Abdul Rashid and secondly whether the charge framed against the 9 accused should be cancelled at the present stage because the Magistrate had not followed the provisions of section 255(1) of the Criminal Procedure Code. As regards the first point a report was called from Malik Abdul Rashid. His report is that he did pass an order of discharge in favour of 7 accused, but the order is not on the file. The order dated 12th of May 1948 does not bear his signatures and from this he concludes that the Ahilkar who recorded that note recorded it without his authority and without his knowledge to protect himself. At any rate this much is clear that the charge was framed against 9 persons alone and the proceedings continued against those persons alone. This circumstance may corroborate Malik Abdul Rashid that he discharged the other accused. The question however remains whether he recorded an order of discharge or not. The Magistrate says that he did record such an order. In the absence of the other material on the file I have no reason to reject the report of the Magistrate and not to accept his explanation' at the present stage. It will no doubt be necessary to find out who is the writer of the order dated 12th .of May 1948, and whether that order was substituted for the original order of the Magistrate. As this file is to be transferred by me for final disposal to Malik Abdul Rashid consequently I would like him to make further enquiry on this point and submit a separate report for departmental action. This enquiry however would not retard the disposal of the In 1938 Mad. 396 it was held that "where a number of persons are being tried for an offence, it is competent to a Magis trate to discharge some of them and to postpone giving reasons for the order of discharge till he makes a final order as regards the rest of the accused. Because till the charge against the remaining accused is disposed of by a final order the Magistrate must be deemed to be in seisin of the whole case and so long as he is in charge thereof, he can always give his reasons in regard to the order of discharge. There is nothing in the language of section 253 which precludes him from doing so. Even assuming that it is obligatory on him to give reasons before he pronounces the order of discharge, his omission to do so is only an irregularity which can be cured by section 537". In the present case the Magistrate says that the 7 accused were discharged, by him. The order of discharge is not available on the file. His statement is accepted by me presently because the charge was framed only against 9 other accused. Two circum stances consequently arise in the present case, firstly that no other order of discharge was passed and secondly, if it was passed the order is missing. It would not be proper at the present stage to ask the Magistrate to pass afresh order of discharge in favour of those accused and to leave the rest of the case to be disposed of by his successor. Neither it would be advisable to ask Mr. Alvi to record an order of discharge of those seven accused at the time of the final disposal of the case. The responsibility of this must rest on Malik Abdul Rashid and this will be the ground for me .to transfer this case to his file, he would be competent to record a proper order of discharge of those accused at the time of the final disposal of the case in accordance with the observations which have been adopted by me. from Madras ruling cited above. The next point is whether the charge framed against the 9 accused should be quashed. I had called upon the learned Govern ment Advocate to appear before me and I acknowledge his help which he has rendered me to dispose of the complicated question that has arisen in the present case. It is no doubt correct that section 255(1) reads that the charge then shall be read and explain ed to the accused and it shall be asked whether he is guilty or has any defence to make. Nobody can deny the imperative nature of this sub‑clause of section

255. But the question is whether the non‑compliance of this provision of the law should result in quash ing the charge at the present stage. It has been pointed out to me by the learned Government Advocate that in 1935 All. 627 where the charge sheet was not explained to the accused and the irregu larity had not prejudiced the accused the irregularity was held to have been cured by section 537 of the Criminal Procedure Code. The question was if after the decision of the case such an irregul arity could be cured by section 537 of the Criminal Procedure Code whether such an irregularity in a case which has been entirely completed and not disposed of finally cannot be cured if the accused have not been prejudiced. The learned Government Advocate refer red me to the provisions of section 227 of the Criminal Procedure Code where a Court is competent to alter or add to any charge upto a certain stage, and to the effect of omission to read out and explain additional charge. It was stated on the authority of 8 B. 200 and 7 Cal. 96, on page 469 of Sohni's Code of Criminal Procedure, 10th edition that when the accused is defended and his counsel is present in Court the omission to read out and explain the additional charge is an irregularity which unless it has prejudiced the accused does not affect the result of the trial. The facts in the present case would show that the accused were represented. They have cross-examined the prosecution witnesses. They have not even claimed trial de novo before two successors of Malik Abdul Rashid. The circumstances clearly indicate that they never considered that their case was prejudiced because the Magistrate had failed to comply with the provisions of section 255 (1). I think it would not be necessary in the present case when it is practically finished to quash the charge because I hold that this irregularity has not prejudiced the case of the accused and it stands cured by section 537 of the Criminal Procedure Code. Some help can be sought from P. Cr. L. J. 320 where the facts no doubt were different but the question of an irregularity committed in the proceedings of that case were considered and it was observed that where the en quiry in the case has proceeded far enough to enable the test required by section 476 to be applied section 537 will cure any defect not prejudicing the accused. In 1933 P. C. 113 a similar view was adopted though the question before Their Lordships of the. Privy Council referred to another point. The basic principle in that case adopted was that if an irregularity has not caused miscarriage of justice the irregularity is cured under section 537 of the Criminal Procedure Code. In this case Malik Abdul Rashid had admitted that by an oversight he had failed to comply with the provision of section 255 of the Criminal Procedure Code. But from the facts of the case as discussed above I am not of opinion that the case of the accused has been prejudiced by that irregularity consequently the irregular ity stands cured by section 537 and the charges should not be quash ed at this late stage. I would therefore reject the recommendation of the District Magistrate, Rahimyar Khan, and transfer the case to Malik Abdul Rashid who shall dispose it of as expeditiously as possible. He would also submit an early report as to the loss of his order of discharge of the other accused. A. H. Recommendation rejected.