1. This is an application by two parsons, Phagu Sahu and Chedi Sahu who were convicted by Magistrate of offences under Section 9(b) of the Salt Act, 1882, and were sentenced, Phagu Sahu in view of a previous conviction to six month's simple imprisonment and Chedi Sahu to two months simple imprisonment and a fine of Rs. 500 or one month more. They appealed to the Sessions Judge of Gaya, who confirmed the order of the Magistrate. In this application for revision two grounds have been taken, namely; that the evidence does not justify a conviction and secondly that the Magistrate had no jurisdiction to try the case inasmueh as he failed to examine the complainant. As regards the first ground, it is sufficient? to say that there is evidence which, if believed, fully justifies the conviction of the applicants. The evidence is set out at considerable length in the Magistrate's order and is summarised in the Sessions Judge's order. We see no reason for differing from the conclusions which have been arrived at by the two Courts below.
2. On the second question it was suggested at one time that there was before the Magistrate no complaint at all, that he really took cognizance under Section 190(c) of the Cr PC, and that therefore the Magistrate ought to have informed the accused that they were entitled to have the case tried by another Court. The case was instituted in the manner which appears to be usual in such cases. What is called a “committal sheet” signed by a Superintendent of the Salt Department was sent to the Magistrate. This sheet sets out the date of the alleged occurrence, particulars of the offence, the names of the accused persons and the names of the witnesses which the prosecution proposes to call, and contains a definite request to the Magistrate to summon the witnesses and try the accused for the offences set out in the sheet. This procedure appears to be authorised by para. 12 of what are described as
“instructions issued by Commissioner of Salt Revenue for the guidance of officers of the Salt Revenue Department.”
3. It is suggested by the learned Government Advocate that these instructions are subsidiary rules made under the R. 64, the rules made by the Governor-General-in-Council. It is unnecessary for us to consider whether the Commissioner had authority to prescribe such a mode of bringing cases before the Courts or whether the so-called instructions are really justified by R. 64 of the rules made by the Governor-General, for there can be no doubt that the committal sheet is a complaint within the meaning of that word as defined in Section 4 of the Cr PC. It appears to us that on receipt of that complaint the Magistrate should, in compliance with Section 200 of the Cr PC, have examined the complainant on oath before issuing processes. He did not so but issued processes at once. At an early stage of the proceedings the accused pleaded that the Magistrate had no jurisdiction to try the case.
4. It is now suggested that this plea was intended to mean that the Magistrate had no jurisdiction because he had failed to examine the complainant on oath. The record does not bear out this suggestion. It appears that for some other reason the accused intended to plead that the Magistrate had no jurisdiction to try the case. The witnesses for the prosecution were examined and cross-examined at great length. All the witnesses named by the accused were called and examined and cross-examined and there was the fullest possible trial of the case. It has not been suggested that the accused have in any way been prejudiced by the failure of the Magistrate to examine the complainant. The learned vakils for the applicants have been unable to refer us to any cast in which a Court has, in similar circumstances, set aside a conviction on account of failure of the Magistrate to examine the complainant and when the complaint was made. On the other hand, we have been referred to two cases in which the Courts declined to set aside the conviction on such a ground as this where the accused was not prejudiced by the failure of the Court to comply with the procedure prescribed. There was no doubt a serious irregularity in the proceedings of the Magistrate but inasmuch as the accused were not in any way prejudiced by that irregularity it would, we think, be wrong to set aside the conviction on that ground. In our opinion the case clearly comes under Section 587 of the Cr PC. The only question which remains is the propriety of the sentences which have been awarded. One of the accused Phagu Sahu had been convicted previously under the same Act of a similar offence and there is certainly no ground for reducing the sentence passed upon him. The other accused Chedi Sahu is the general agent; of Phagu Sahu. He has been sentenced to two months' simple imprisonment and to ??? a fine of Rs. 500. Considering the ??? on which the operations of the two accused have been carried on, we see on ground for interfering with the sentence passed upon him. This application is dismissed.
V.S/R.K
5. Application dismissed.