1. The Sessions Judge of Muzaffarpur has referred this case to this Court under Section 438 of the Cr PC, recommending that the conviction of the accused under Section 76 of the Embankment Act (2 of 1882) by the Sub-divisional Officer of Muzaffarpur may be set aside and a retrial ordered.

2. The case originated in a report of the District Engineer to the Collector who passed thereon an order to the Court. Inspector to prosecute all the offenders named in the report. The prosecuting Inspector then, in a letter to the Sub-divisional Officer, Saddar, Muzaffarpur, forwarded the report of the District Engineer with the order of the Collector therein and asked that the accused might be prosecuted under Section 76 of the Embankment Act. The Sub-divisional Magistrate on receipt of this report and without examining the complainant summoned the accused and himself tried and convicted them. The learned Sessions Judge re-commends the conviction to be set aside and a retrial ordered, on the ground that the Magistrate did not comply with the provisions of Section 200 of the Cr PC. It has not been suggested that the accused have, in any way, been prejudiced by the failure of the Magistrate to examine the complainant on oath under Section 200 of the Cr PC. The trial commenced on 11th December. The witnesses for the prosecution were examined and cross-examined at great length and their evidence was concluded on 23rd December. A number of witnesses were tendered on behalf of the accused. The examination of witnesses for the defence finished on 9th January and the judgment of the Magistrate was delivered on 10th January. Throughout the trial in the Court of the Magistrate the accused did not make any grievance that they were prejudiced on account of the failure of the Magistrate to examine the complainant on oath under S. 200 before summoning the accused, although several petitions of different nature appear to have been filed on their behalf during the trial. The District Engineer, on whose report the prosecution was started, was also examined as a witness on behalf of the prosecution during the course of the trial and was fully cross examined on behalf of the accused. As a matter of fact the learned Sessions Judge himself does not rest his recommendation upon the ground of prejudice to the accused on account of the omission to examine the complainant under S. 200 of the Code, before issuing processes against the accused. Apparently the Sessions Judge thinks that such an omission was an illegality, which vitiated the whole trial and effected the jurisdiction of the Magistrate to summon and try the accused. In this he is, no doubt, supported by the judgment of Das, J., sitting singly in the case of Mangu Koeri v. Emperor(1), (2nd May, 1919), relied upon by the Sessions Judge in his letter of reference.

3. However, in a case similar to the present one Phagu Sahu v. Emperor(2) Chamier, C.J, and Sharfuddin, J., presiding over a Division Bench of this Court in November 1916, only a few months after its establishment observed that an omission to examine the complainant under S. 200 of the Code 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 537 of the Cr PC”

4. This ruling was quoted before Das, J., but he declined to follow it on the ground that the authorities placed before him were not probably shown to the learned Judges who decided that case. But this is no ground at all for disregarding the decision of a Division Bench of this Court by a Judge sitting singly. The only course open to Das, J., if he doubted the correctness of the aforesaid decision of the Division Bench was to have referred the matter for decision to a larger Bench.

5. Apart from any other ground, the present case should be governed by the aforesaid decision of the Division Bench and not by that of Das, J., sitting singly. Besides, the view taken by the Division Bench appears to be correct and in agreement with the view taken by almost almost all the High Courts in India as shown by me in the case of Saheb Tewari v. Emperor(3), long before the decision by Das, J. Das, J., while referring to my judgment, doubted if this was the view of the other High Courts, apparently because the decisions of the other High Courts were not placed before him. I referred to only a few leading cases on the subject, as the later cases simply followed them, and I did not consider it necessary to refer to them.

6. With more deference to the opinion of Das, J., I would now deal with the authorities.

7. The leading case is that of Queen-Empress v. Monu(4). There a yadast of a Revenue Officer, as the report of the District Engineer, in the present case, was held to be a complaint under Section 4 of the Cr PC. The accused was summoned and tried without the complainant having been examined under S. 200. It was held there that the omission to examine the Tahsildar under S. 200 was only an error of procedure under S. 537 of the Code and as the accused were not prejudiced by the irregularity the High Court of Madras declined to interfere in revision with the conviction of the accused. Das, J., disposed of this Madras ruling on the ground that it did not appear to have been ‘followed in any other case in Madras.” But that does not in any way shake its authority for the procedure in Madras must have been set at rest by this authority as is clear from the more recent case of Velu Nathan, In re(5).

8. The Punjab Chief Court followed it in the case of Uttam Chand v. Empress(6) and Girdhari Lal v. Emperor(7), and the Sind Judicial Commissioner's Court in the case of Muso v. Emperor(8).

9. The Bombay High Court took a similar view in Aparao Jhaverilal, In re(9) and followed the Madras case.

10. In Allahabad, there was at first a conflict of opinion on the point. In 1887, in the case of Queen-Empress v. Murphy(10), Mahmud, J., held that the

“omission to examine (the complainant under S. 203 of the Code of 1882, corresponding to S. 200 of the present Code) amounted to only an irregularity of such a character as would be covered by the somewhat extensive provision of S. 537.”

11. No doubt, as pointed out by Das, J., in the case of Kesri v. Muhammad Bakhsh(11). Knox and Blair, JJ;, did not subscribe to the view taken by Mahmud, J. In that case the accused was acquitted without the complainant having been examined on oath and without taking the evidence produced in support of the prosecution and it was in the circumstances of the case very rightly observed that the Magistrate was bound to hear the complainant and take all the evidence that he wanted to produce in support of the prosecution.

12. The point raised in the present case did not arise there, namely, whether after the conviction, the mere omission to examine the complainant under S. 200, without any prejudice to the accused and without their having taken any objection at an earlier stage, would vitiate the trial. The point expressly arose in the recent case of Emperor v. Bateshar(12), where Richards, C.J, and Piggott, J. declined to interfere in revision with the conviction of the accused on the ground that the omission to examine the complainant was a mere irregularity, though they pointed out that the provisions of the Code as to procedure ought to be strictly complied with. This latest authority of the Allahabad High Court was apparently not quoted before Das, J.

13. In the Calcutta High Court, no doubt in the case of Satya Charan Ghose v. Chairman of the Utterparah Municipality(13) and Lokenath Patra v. Sanyasi Charan Manna(14) the complaints were dismissed under S. 203 without the complainants having been examined on oath; and upon the motion of the complainants it was rightly held that the complaints were not properly disposed of and that it was the duty of the Magistrate, as directed by Section 200 of the Cr PC, to examine the complainants on oath and that unless this was done, it was not competent for him to have dismissed the complaints. This is not the case here. With great respect to Das, J., these cases relied on by him, to my mind, have no bearing on the present case. The direct authority of the Calcutta High Court is the case of Bhagaban Chandra Karmokar v. Crown(15). There Chitty and Carnduff, JJ., following the case of Queen-Empress v. Monu, declined to interfere with the conviction, where upon the report of the Excise Sub-Inspector the accused was summoned without the Sub-Inspector having been examined on oath on the ground, as in the present case, that he as complainant was subsequently examined at the trial. They held that the omission to examine the complainant was only an error of procedure.

14. The two most recent decisions of the Calcutta High Court in 1919, Harihar Roy v. Emperor(16) and Bhairab Chandra Barua v. Emperor(17), have reviewed the authorities of all the cases and have upheld the view taken in the leading case of the Madras High Court, namely, Queen Empress v. Monu. This Court has already held that in matters of procedure it would follow the decisions of the Calcutta High Court.

15. Das, J., however preferred to follow the decision in another case of this Court in Jhuna Lal Sahu v. Emperor(18) (Sharfuddin and Roe, JJ). In that case the objection was taken at the earliest possible opportunity just after the accused was summoned. Thereupon, the complaint of one Mahamaya Prasad regarding the fabrication of a document, the Magistrate, without examining the complainant on oath, referred the matter to the Criminal Investigation Department for inquiry and on the result of that inquiry the Magistrate summoned the accused. It was pointed out that the Magistrate should have, under S. 200, Examined the complainant on oath immediately when the complaint was filed and that, if he wanted to proceed further, he ought to have called either upon the complainant to file a fresh complaint, or the police officer who conducted the investigation to do so, and then examine the complainant on oath. That case therefore cannot apply to the present case or to the facts of the case decided by Das, J. The whole question is at what stage the objection is taken? If it is taken atan early stage, surely action should be taken to set right the defect and to proceed with the case after examining the complainant on oath under S. 200, but certainly, if the objection is taken after the trial is over and the accused is convicted, it cannot in itself vitiate the trial unless it has occasioned a failure of justice or has prejudiced the accused in his defence. All the High Courts agree in this view, and there is no case, as observed by Chamier, C.J, and Sharfuddin, J., in the case of Phagu Sahu v. Emperor, already referred to:

“in which a Court has in similar circumstances set aside a conviction on account of failure of the Magistrate to examine the complainant when the complaint was made.”

16. I must however repeat what I said in my earlier decision in the case of Sahib Tewari v. Emperor, that the procedure laid down in S. 200 of the Code ought to be strictly complied with. It is a very valuable safeguard which the legislature has provided and must be scrupulously observed and insisted upon. As pointed out in the case of Emperor v. Batesher, the non-compliance with this provision of the Code leads to much confusion and waste of public time, not to speak of involving the parties to unnecessary expense. It is regretable that at this distance of time the express provision in the Code and the repeated pronouncements of the High Courts should be ever violated by Magistrates. The attention of the Magistrate concerned should be expressly drawn to it that his disregard of the primary procedure in the Code has led to so much waste of time of the Sessions Judge and of this Court and harassment to the parties. No doubt, in the circumstances of this case I must decline to accept the recommendation of the Sessions Judge and to interfere with the conviction of the accused on the ground that the accused were not prejudiced in any way, and that the District Engineer, at whose report the prosecution was started, was subsequently examined at the trial and was fully cross-examined, though he was not examined on oath before issuing processes against the accused.

V.S/R.K

17. Interference declined.