1. The applicants together with, three other persons were tried by the second class Magistrate, Dharwar, for offences under Sections 448 and 323 of the Indian Penal Code, and abetment thereof. The applicants were convicted of abetment of the offence of causing simple hurt, and were sentenced to pay fines of Rs. 15. There was an appeal to the Sub-Divisional Magistrate, who confirmed the convictions, The order of the appellate Court was in these terms:-
The pleader for the appellants argued the case at great length cm the merits of the case generally but could not point out any specific glaring discrepancies in the prosecution evidence. On going through the prosecution evidence I find that itis consistent and credible and there is no reason to disbelieve it. The evidence adduced by the defence is very inconsistent and contradictory and appears to have been concocted simply to get out of the trouble.
2. The Magistrate then dealt with the case of accused No. 2, with which we are not now concerned, and concluded as follows:-
I therefore see no grounds to interfere with the finding and sentence of the lower Court and dismiss the appeal.
3. The only point of law which arises in this present revision application is that the judgment of the Sub-divisional Magistrate does not comply with the provisions of Section 367 of the Criminal Procedure Code, which require that every judgment shall contain the point or points for determination, the decision thereon, and the reasons for the decision. It is clear that the judgment is not in the proper form. The Magistrate ought to have set out the issues, and, without necessarily going into detail, should have stated that his findings on each issue were the same as the findings arrived at by the trial Court. It would be open to this Court to interfere in revision, set aside the order of the Sub-divisional Magistrate, and direct that the appeal be re-heard. In some cases this Court has done that. We were referred to the case of Emperor v. Shanmukh (1930) 32 Bom. L.R. 353 In that case where there was a judgment of the Court of appeal which did not satisfy the requirements of Section 367, we held that there was an irregularity which vitiated the judgment, and directed that the appeal should be re-heard. I was a party to the decision in that case, and I pointed out in my judgment that there were special reasons there for holding that the irregularity could not be regarded as a mere technicality. The case was referred to us by the Sessions Judge, who had stated in his referring letter that after perusal of the lower Court's judgment he was not fully satisfied that there had not been a failure of justice. In thepresent case lean see no reason to suspect a failure of justice. We were also referred to Emperor v. Devendra : (1915)17BOMLR1085 In that case Mr. Justice Batchelor and Mr. Justice Hayward set aside an order of the District Magistrate dismissing an appeal under Section 423 of the Criminal Procedure Code without a judgment at all, The order in that case merely consisted of the words ' the appeal is dismissed under Section 423 of the Criminal Procedure Code.' Mr. Justice Batchelor pointed out that the applicant was by law entitled to the independent opinion of the appellate Court. As the appellate Court had not expressed its own opinion in any way, the order was reversed, and the appeal was remanded to be heard and decided in accordance with law. In the presentcase, however, the order of the Sub-divisional Magistrate, although as I say it does not strictly comply with the provisions of Section 367, does at least make it clear that the Magistrate had perused the evidence and heard arguments and, having heard the case argued, had come to an independant opinion as to the guilt of the applicants. In these circumstances it seems to me that to set aside the Sub-divisional Magistrate's order and to direct the appeal to be re-heard would be a futile proceeding. I do not consider that this Court is invariably bound to interfere in revision because there is an irregularity in the form of a judgment unless there is some reason to believe that there has been a failure of justice. I would, therefore, discharge the rule.
4. I agree.