P (PLP)

ABDUL AZIZ, C J‑‑--One Balu by name was committed to Sessions by Magistrate, 1st Class, Sadiqabad to take his trial under Section 302, Indian Penal Code. The learned Sessions Judge Rahimyat Khan moved the High Court to quash the commitment on the ground that the Magistrate has not followed the provisions of section 361 of the Criminal Procedure Code. Section 215 of the Criminal Procedure Code refers to quashing the commitments made under section 213 and reads "a commitment once made under section 213 by a competent Magistrate. can be quashed by the High Court only and only on a point of law. The provisions of this section are mandatory but the powers of the High Court for, quashing commitment orders are restricted thereunder. A natural question then arises whether there is a point of law which necessitates the commitment to be quashed. Now section 361 according to the learned Sessions judge has not been complied with by the committing Magistrate. Section 361 reads "whenever any evidence is given in a language not understood by the accused and he is present in person, it shall be interpreted to him in the open Court in a language understood by him." The‑ order of reference of the learned Sessions judge is rather to the effect that the accused understands the language of the Court, but the Court does not understand the language of the accused. It means therefore that the committing Magistrate did not stand in the necessity of comply ing with the provisions of section 361 of the Criminal Procedure Code. It was necessary for him to follow it only if the accused had not understood the proceedings in the Court of the committing Magistrate. Even if he had not understood the language of the Court, the question is, could the proceedings be set aside if no fai lure of justice had occurred. A similar question had arisen in V. AL Abdul Rahman v. King Emperor 1927 P. C.

44. It was laid down there, "a mere omission or irregularity to comply with section 360 unaccompanied .by any probable suggestion of any failure of justice having been thereby occasioned, is not enough to warrant the quashing of a conviction." In this lengthy judgment failure to comply with the section 361 was also considered. This view was adopted by Jekson, J , in 1.930 Mad.. 186 and it was laid down that section 537 may be taken to cover any irregularity in the widest sense of that term, provided there has been no failure of justice. The Appellate Court ought not to order re‑trial in a case where provisions of section 361 are overlooked without satisfying itself whether or not a failure of justice has been occasioned. ‑In this case the trial has not yet started, before the learned Sessions Judge, According to the report of the learned Sessions judge there does not appear any ground to hold that failure of justice has taken place during the course of enquiry in the Court of the committing Magistrate. The learned Sessions judge would be within his province to see during the course of the trial whether airy safe guards under section 361 of the Criminal Procedure Code are needed in the interest of the accused. If so, he can certainly follow the course suggested in that section. With these observa tions I decline to quash the commitment proceedings and return the case back to learned Sessions judge to proceed in accordance with law and in the light of the above remarks. A. H. Recommendation not accepted.