Ram Labhaya, J.
1. Petitioner, Joynal Hub-Bain was convicted Under Section 6 (a), Assam Opium Prohibition Act, 1947, by a Magistrate of the First Class. His appeal against the conviction was dismissed. He asks for a revision of the orders of the Courts below. It has been contended on his behalf that the trial is vitiated by an illegality. The petitioner had been, discharged when he was first prosecuted by an order of Mr. Oarvalho, Assistant Commissioner dated 7-9-1918, This order of discharge was later set aside by the Additional District Magistrate but without giving any opportunity to the accused to show cause why the order of diaobarga be not set aside and further inquiry ordered. It is urged that the failure to issue notice to the accused as required by Section 436, proviso, criminal P.C. is an illegality which vitiates the order directing further inquiry, as also the subsequent proceedings culminating in the conviction of the accused.
2. This contention has considerable force. The proviso to Section 436 was introduced in 1923. Before the addition of this proviso it was not obligatory to give notice to a discharged person before an order for further inquiry into the case was made. Even then tha view gene-rally held by the Courts was that it was desirable to give notioa to a discharged person before a direction for further inquiry wa3 made against him. This view was in consonance with the recognised principle that no one should be condemned unheard. The change in the law in 1923, recognising the force of the view generally held before, took the form of the proviso added to the section, which forbids the making of an order (for further inquiry) under the section without giving to the person concerned an opportunity of being heard. It is mandatory in character and its requirement is imperative. A disregard of the proviso or a failure to comply with ita requirement is an obvious illegality. An order of diacharge though not tantamount to an order of acquittal is normally set aside only when it is perverse, absurd or manifestly wrong or based on a record of evidence which ia obviously incomplete. The person discharged has the legal right to show that the order is not of such a oharActer that it is liable to be reversed, The reversal of the order of discharge ordered ex parte would be illegal as well as unjust. This illegality could not be cured by the provisions contained in Section 537, Criminal P.C. Even if the omission to give notice to the accused ia treated a3 an irregularity, we are inclined to the view that prejudice ia necessarily involved when such a serious irregularity is committed.
3. The view we take of the matter finds support from Bhagwan Das v. Emperor A. I. R. (21) 1934 ALL. 51 : 85 Cr. L. J. 418. Niamatul. lah, J., held in that oaaa that
the proviso to Section 43Q is imperative and enjoina that an opportunity should be given to the accused to show cause why further inquiry should not be ordered.... A disregard of the proviso ia an Illegality, and in any case, such irregularity as seriously prejudioea an accused person who ia ordered to be proceeded against.
We find ourselves in full agreement with this view. Failure to issue notice as required by the proviso to Section 436 was held to be an illegality in Chhajju v. Behari A.I.R. (20) 1933 Lah. 1018 : 85 Cr. L. J. 404 also. The same view was ex-pressed in Emperor v. Chukar Qhularn Shoro A. I. R. (20) 1983 Sind 299 : 34 Cr. L. J. 1157. Both these cases treat the proviso as mandatory in character and bold that non-compliance with It is an illegality.
4. A different view, however, has been taken in Emperor v. Nga Kyoung Baung, A. I. R. (21) 1934 Bang 181 : 35 Cr.L.J. 1408. In that caso it was held that a failure to issue notice as re. quired by the proviso to Section 436, Criminal P- 0., was not fatal to an order directing further inquiry unless it resulted in a miscarriage of justice. Some cases decided before the introduction of the proviso were relied on in support of this view. With great respect, we are unable to agree that those cases are of any assistance now when the statutory requirement ia that an order for further inquiry shall not be made unless the person discharged had an opportunity of being heard. Section 440, Criminal P. O,, was also referred to. It provides that no party has any right to be heard either personally or by pleader before any Court when exercising its powers of tevision provided that the Court may, if it thinks fife, when exercising suoh powers hear any party either personally or by pleader and that nothing in this section shall be deemed to affect Section 489 (2). The absence of any reference in Section 440, Criminal P.C., Co the proviso to Section 486 has weighed with the learned Judge when holding that the proviso to 3. 436 was not mandatory. We think there is nothing in Section 440, Criminal P.C., which detracts from the mandatory character of the proviso to Section 46. There is no conflict between provisions contained in Section 440, Criminal P.C., and the proviso to Section 436. Section 440 expressly provides that it shall not affect the provisions of Clause 3 of Section 439, which enjoins that no order adverse to the accused shall be passed in his absence. The proviso insists on the observance of that rule before a direction for further inquiry is made Under Section 436. The two provisions are in complete harmony. Besides, the proviso to Section 439 was inserted in 1923. Section 440 in its present form has been in existence since 1882. The proviso, therefore, would not be affeated by anything contained in Section 440. In these circumstances we find it difficult to follow the view of the law taken in the Rangoon case.
5. It was held in Subrahmania Ayyar v. King Emperor 55 Mad. 61 : 28 I. A. 257 P.C. by their Lordships of the Privy council that 'the disregard of an express provision of law as to the mode of trial was not a meie irregularity suoh aa could be remedied by Section 537, Criminal P.C.' They observed that
such a phrase as 'irregularity' is not appropriate to the illegality of trying an accused person for many different offences at the aame time, and those offeneea baing spread over a longer pedod than by law could have been joined together in one indictment.
In their Lordships' view such an illegality was not oura'ble. In Babulal v. Emptror A.I.R. (25) 1938 P.C. 130 : 39 Cr. L. J. 452, their Lord-ships had again occasion to consider the earlier authority and observed aa follows:
It haa been taken as settled law on all sides throughout theae proceedings that the infringement of Section 239 (j) would, it made out, constitute an illegality, as distinguished from an irregularity, so that the conviction would rquire to be quashed under the rule stated in Subrahmania Ayyar's case aa contrasted with the result of an Irregularity, as to which Abdul Rahman's case A.I.R. (14) 1927 P.C. 44 : 28 Cr.L.J. 259 is an authority.
A distinction appears to have been made between an 'illegality' and an 'irregularity' and a contravention of an express provision of the Code affecting the mods of trial has been treated as an illegality. According to this view non.com. pliance with the proviso to 9. 436, Criminal P.O.i would be an illegality, and even if such a non-oompliance is described as an irregularity, ii must be taken to have occasioned a failure of justice.
6. In the view of the matter that we take, the order directing further inquiry was illegal. The illegality is not curable. The subsequent proceedings ending in the conviction of the accused are also vitiated as they were held in pursuance of an illegal order. The order directing further inquiry and subsequent proceedings are therefore quashed. The petition of revision is returned to the District Magistrate for disposal in accordance with law after notice to the accused. Meanwhile the accused is entitled to and shall be set at liberty. In view of order on the revision petition no formal order on the application for bail is necessary. -.
7. I agree.