K. Lahiri, J.
1. This Criminal Reference is made by the Sessions Judge, U.A.D. at Jorhat under Section 438 of the Criminal Procedure Code, 1898 praying for quashing the charges framed against the accused Hema Kanta Bora.
2. The facts necessary for determination in this case are that the complainant Dimbeswar Chaliha filed a case being Complaint Case No. 65 of 1970 against 8 accused persons. On 10-4-1970 one of the accused persons was discharged. Thereafter, 16-6-1970 was fixed for framing charges against rest of the accused persons, namely, the rest of the seven accused persons, The order sheet of that date shows that the charges were framed against all the accused persons. But, in the form of the charge the name of accused Hema Kanta Bora was not incorporated. The order dated 16-6-1970 does not show that any of the accused was discharged. The order sheet of the said date clearly discloses that charges were framed under Sections 147, 341 and 506 of the Indian Penal Code against 'all the accused persons'. The records made availible to me clearly indicate the facts that the said accused Hema Kanta Bora continued to ittend Court since thereafter. I am referring some of the orders from which it will be abundantly clear that accused Hema Kanta Bora was present in Court in connection with the case as an accused person even after 16-6-1970, The order sheet dated 30-10-1970, 27-8-1973 and the haziras filed in connection with the case are clearly indicative of the fact that the accused Hema Kanta Bora continued to be present in Court even upto on 27-7-73. On 27-8-1973 the accused Hema Kanta was absent for which due process was issued against him. On receipt of the summons the accused appeared in Court on 11-9-1973 and made a for the first time that he was discharged by the trial court on 16-6-1970. The learned Magistrate considered the entire records of the case and found that the accused Hema Kanta was never discharged but in the form of the charge his name was omitted. On 11-9-1973, as an abundant caution, the learned Magistrate explained him the charges once again and the accused pleaded not guilty and thereafter the case was fixed for cross-examination of the witnesses on 24-10-1973 in regard to the charges so framed against accused Hema Kanta Bora.
3. Afflicted by the aforesaid order the accused Hema Kanta moved an application under Section 435 read with Section 438 of the Criminal Procedure Code, 1898, before the Sessions Judge, Jorhat, who upon hearing the parties made a reference to this Court praying for setting aside the order dated 11-9-1973 and quashing of charges framed against accused Hema Kanta Bora. It is abundantly clear that the accused Hema Kanta was an accused person. If his plea, that he was discharged be sustained then he must show that there is some order made by a competent Court directing his discharge. On record, I do not find anything to show that the accused was ever discharged, On the other hand I find that the accused himself was present on all the dates excepting a few for which due actions were taken against him. At no point of time either the counsel appearing on behalf of the accused or the accused himself took any objection as to why he was asked by the Court to appear even when he was discharged on 16-6-1970. After 16-6-1970 he continued to be present in Court until 27-7-1973 without any objection or flutter. It appears that taking advantage of the omission of his name in the form of the charge he took an objection that in view of the absence of his name in the formal charge he must have been discharged by the trial Court on 16-6-1970. In my opinion, an accused person cannot be discharged in that manner nor he can claim that there was an order of discharge unless he can show and establish that there was a valid order of discharge made against him by a competent Court. Herein, on record, there is nothing to show that the accused was discharged.
4. Now the question is as to what is the effect of the omission of his name in the formal charge. Section 537 of the Criminal Procedure Code, 1898 clearly lays down that no finding or sentence can be reversed by reason of error or omission in charge or other proceedings unless the said omission or irregularity has occasionsd a failure of justice. In my opinion, an omission of the name of the accused in the form of charge by itself cannot be at all considered to be a group to arrive at the conclusion that the accused was prejudiced in his trial in any manner whatsoever, more so when in fact he was personally present and participated in the entire proceedings. He knew, what were the allegations against him. He was represented by his counsel. Apart from the above if there was any omission, it was an omission on the part of the Court and there is not the least doubt about the fact that on account of mistake of a, Court, no litigant should suffer. In the instant case, the complainant was not responsible for the omission, which is nothing but human error of the learned Magistrate and the benefit of this human error cannot be reaped by the accused person.
5. I am constrained to hold that no prejudice was caused to the accused person merely because his name did not appear in the formal charge. The omission to mention his name in the form of the charge was an omission on the part of the learned Magistrate and nothing but a simple omission and on that count the complainant cannot be penalised.
6. Under these circumstances, I cannot hold that the order dated 11-9-1973 as passed by the learned trial Court was not even and just, On the contrary, I find that the learned Magistrate has taken adequate measure to safeguard the interest of the accused person and has framed charges anew and has given the accused an opportunity to cross-examine the witnesses. As such. I am of definite opinion that the reference made by the learned Sessions Judge to set aside the said order cannot be sustained.
7. In the result, the reference is rejected. The records be sent down to the trial Court for expeditious disposal of the case.