Ram Labhaya, J.
1. This is a reference under Section 438, Cr. P. C. from the Court of the learned Additional Sessions Judge, U. A. D. It -arises out of a complaint case. The complaint was under Sections 352, 427, I. P. C. and Section 24 of the Cattle Trespass Act. The accused was however summoned only under Section 24 of the C. T. Act.
2. The case of the complainant was that the two accused who are the petitioners had ten buffaloes. These buffaloes entered his paddy field and caused damage to his crops. He was taking the buffaloes to the cattle-pound when they were forcibly rescued by the accused. He estimated his loss at Rs. 125/-.
3. The accused were summarily tried, found guilty and sentenced to a fine of Rs. 10/- each. They assailed the propriety of their convictions by a petition of revision in the Court of the Sessions Judge. The learned Additional Sessions Judge has referred the case recommending that the convictions be quashed. The reasons in support of the recommendation are: (1) that the procedure prescribed by Section 242, Cr. P. C. was not followed and (2) when examining the accused under Section 342, Cr. P. C. the Court did not comply with the requirements of Section 342.
4. The learned Judge has not stated in his order of reference that any prejudice has been caused to the accused on the merits by the failure of the trial Court to comply with the provisions contained in Sections 242 and 342, Cr. P. C. In his view non-compliance with these provisions should be enough to vitiate the trial. He has referred to a case reported in--'Upendra Nath Paul v. Bankim Chatterjee', 48 Cri LJ 785' (Cal) (A) in support of his recommendation.
5. Section 242, Cr. P. C. requires that when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted; but it shall not be necessary to frame a formal charge. The record of the case does not contain any statement to the effect that particulars of the offence with which the accused were charged were stated to them. All that is said is that the accused pleaded not guilty. It is possible that the particulars may have been stated though this fact was not stated in writing but assuming that there was an omission on the part of the Court to state the particulars of the charge to the accused before his plea was recorded, the question is whether such an omission is by itself enough to vitiate the trial. In--'Gopal Krishna v. Matilal Singh', AIR 1927 Cal 196 (B) a Division Bench of the Calcutta High Court held that the failure to comply with the provisions of Section 242, Cr. P. C. vitiated the trial. The learned Judges followed the Privy Council case reported in-- 'Subramania Iyer v. King Emperor', 25 Mad 61 (G). The Court of the Judicial Commissioners at Nagpur also had to consider the question in--'Mt. Lahani v. Khusal', AIR 1932 Nag 127 (D). The learned Judicial Commissioner held that the principal subject of the provisions of Section 242, Cr. P. C. is to discover whether the accused admits the commission of the offence, and the omission to state the particulars of the offence in accordance with the provisions of Section 242, Cr. P. C. if unaccompanied by any probable suggestion of a failure of justice having been thereby occasioned is cured under the provisions of Sections 535 and 537. The learned Judge relied on a later decision of their Lordships of the Privy Council reported in-- 'Abdul Rahman v. Emperor', AIR 1927 PC 44 (E). The learned Judges of the Calcutta High Court could not consider this later decision from the Privy Council as the judgment was delivered some weeks after the case game up before them.
In--'AIR 1927 PC 44 (E)', there was non-compliance with the requirements of Section 360, Cr. P. C. Their Lordships held that mere omission or irregularity to comply with Section 360 unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned was not enough to warrant the quashing of a conviction. The earlier Privy Council decision reported in 25 Mad 61 (C) was distinguished on the ground that in that case the procedure adopted was one which the Code positively prohibited, and it was possible that it might have worked actual injustice to the accused. In--'P. Kottayya v. Emperor', AIR 1947 PC 67 (F), the argument advanced before their Lordships was that a breach of an express provision of the Code of Criminal Procedure (Section 162) cannot be cured but should lead to the quashing of the conviction. Referring again to 25 Mad 61 (C) their Lordships observed as follows :
'When a trial is conducted in a manner different from that prescribed by the Code as in 28 Ind App 257 (C), the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some 'irregularity occurs in the course of such conduct, the irregularity can be cured under Section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind.'
In support of this view their Lordships relied on AIR 1927 PC 44 (E).
6. In--'Dost Muhammed Qutabdin v. Municipal Committee, Haripur, Hazara', AIR 1941 Pesh 9 (G) also it was held that failure to comply with the provisions--of Section 242, Cr. P. C. amounted merely to an irregularity which Was cured under Section 537, in the circumstances of that case. There are two decisions from the Patna High Court. In--'Bibi Marim v. Surajmal, AIR 1936 Pat 591 (H) the Calcutta view enunciated in AIR 1927 Cal 196 (B) was followed. In a later decision reported in--'Sukhdeo Prasad v. Emperor', AIR 1938 Pat 55 (I) the contrary view was taken. It was held in this case that in a summons case, omission to explain the particulars of an offence to the accused under Section 242 and to ask him to show cause at that stage is not (in cases in which the accused is defended and pleads not guilty) an illegality vitiating the trial provided of course that no prejudice can be shown to have been caused to the accused and that the accused has in due course been examined under Section 342. I entirely agree with the view which has prevailed in the Courts at Nagpur, Peshawar and Patna and hold that the mere omission to state the particulars of the offence to the accused as required by Section 242 unaccompanied by any suggestion of any probable failure of justice having been occasioned thereby would be curable irregularity.
7. So far as the facts are concerned there was a written complaint. The accused were represented. They have pleaded not guilty. About 4 witnesses were examined from the prosecution side. The whole case was put before them. The prosecution case was very simple. The allegation was that the buffaloes of the accused which the complainant was taking to the cattle pound on account of damage done to the crop by them were rescued forcibly from his custody. The omission in these circumstances cannot be said to have caused any prejudice. The learned Sessions Judges has not even suggested that the accused were prejudiced or that any failure of justice was occasioned by the omission.
8. The second ground on which the recommendation is made is that when examining the accused under Section 342 circumstances appearing in the evidence against the accused: were not explained to them and the solitary question actually put did not satisfy the requirements of Section 342, Cr. P. C. The examination of the accused no doubt is not satisfactory. The accused were asked to make their statements. But again the question is whether there has been any prejudice caused to the accused. In--'Tara Singh v. The State', AIR 1951 SC 441 (J), their Lordships held that
'every error or omission in this behalf, does not necessarily vitiate trial because the errors of this type fall within the category of curable irregularities. Therefore, the question in each case, depends upon the degree of the error and upon whether prejudice has been occasioned or is likely to have been occasioned.'
In the circumstances of this case, there is no basis for holding that prejudice was caused or may be deemed to have been caused to the accused. The case reported in 48 Cri LJ 785 (Cal) (A) on which the learned Sessions Judge has relied is distinguishable on facts. It was remarked in this case that the whole procedure was bad and the question whether irregularities in the procedure were curable or not was not raised. The propriety of the conviction in that case was also questionable. The omissions pointed out in this case do not justify quashing of the conviction.
9. I would like to add that though the omission to comply with the requirements of Section 242 may not in all cases lead to the quashing of convictions, it is necessary for the Magistrates to see that the provisions are complied with. The Magistrates should further take care to see that the record on its face establishes this compliance. Similarly so far as compliance with the requirements of Section 342 is concerned, the importance of strict adherence to the requirements of Section 342 cannot be exaggerated. In the words of their Lordships of Supreme Court (vide AIR 1951 SC 441 (J) )
'the importance of observing faithfully the provisions of Section 342 cannot be too strongly stressed. The accused must be questioned separately about each material circumstance which is intended to be used against him. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him. The questioning must therefore be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand.'
10. For reasons given above, I decline to interfere in this petition. The recommendation of the learned Additional Sessions Judge? is not accepted. The order of conviction shall stand.