Sarjoo Prosad, C.J.
1. This is a reference made by Mr. B. C. Dutta, Second Additional Sessions Judge, Lower Assam Districts, arising out of Criminal Case No. 288 of 1954 pending before a magistrate with first class powers at Mangaldai. The facts appear to be that a complaint was filed by one Abdul Kadir against Gafur Sheikh and four others in which the accused persons were summoned. Pour of the accused persons appeared on 30-3-1954 and they were allowed to go on bail.
One of them Ahlad, was absent on that day and the case was adjourned to 20-4-54 for the appearance of this accused; on this date again Ahlad remained absent and the case had to be adjourned, to 5-5-54; on that day accused Ahlad appeared, but another accused, one Hawa Sheikh who previously happened to be enlarged on bail remained absent.
The case was adjourned to 19-7-54 for evidence, In the meantime, the trying Magistrate appears to have been transferred and the case was placed for hearing before Mr. P.C. Das, a Magistrate with first class powers at Mangaldai. On that date, the complainant was not ready and he applied for adjournment; but the learned Magistrate passed a very peculiar order acquitting the accused persons on the ground that the accusations had not been explained to them as required by Section 242, Criminal P.C. The learned Magistrate found that non-compliance with the provision of this section amounted to an illegality which vitiated the whole proceeding and therefore the accused had to be acquitted.
2. It is against this order that the learned Sessions Judge has made a reference to this Court. The order is obviously wrong. It is difficult to understand why the learned Magistrate should not himself have proceeded to explain the charge and the accusations to the accused if he thought that the charges had not been explained to them. The evidence had not been recorded till then.
There was no justification at all for passing the order which the learned Magistrate has done in this case. Even if there had been non-compliance with Section 242 Cr. P.C. it could not be held that it amounted to an illegality so as to vitiate the proceeding; utmost, it might be said to be a case of irregularity which in the absence of any prejudice was curable.
In any event, in this case there was no reason why the Magistrate could not comply with the provision of the law himself before recording evidence in the case. The order is, therefore, quite illegal and based on misconception of law. It is therefore set aside. The Magistrate should now proceed to try the case from the stage at which the-erroneous order in question was passed,
3. I agree.