1. The first ground urged in this application is that the Magistrate who has bound the petitioners over to keep the peace has omitted to comply with the provisions of Section 115 of the Code of Criminal Procedure. That section requires that the summons issued under Section 114 shall be accompanied by a copy of the order made under Section 112.
2. It is admitted by the Magistrate in the present case that that was not done. In other words, the summons was not accompanied by a copy of the order and the reason given by the Magistrate is that the Form, Cr. P. C, No. 56 G. in itself contains the substance of the order made under Section 112 and that it is, therefore, the practice of his Court to consider this form of summons to be sufficient notice to the accused of the matter with which he is charged and, therefore, to be complied with under the provisions of Section 115. Then the Magistrate goes on to say: 'The order is made in English and copy of this accompanies the summons. As none of the accused understands English and the form of summons contains the substance of the order the making of the affidavits appears unduly to stress an imaginary failure to comply with legal provisions.'
3. Where the legislature has directed certain procedure to be followed and certain forms to be adopted in a criminal case, the Magistrate ought to adhere to the law and see that no prejudice is created so far as the accused is concerned.
4. The question which we have to determine in the present case is whether the omission on the part of the Magistrate to send a copy of the order under Section 112 with the summons invalidates the trial. To that Section 537 of the present Code is a complete answer. It must be observed that Sections 111 and 115 of the present Code correspond more or less to Sections 491 and 492 of Act X of 1872, and it was held by the Calcutta High Court in Abasu Begum v. Umda Khanum 8 C. 724 that the provisions of Sections 491 were not imperative but merely directory. And so it was held even though in Act X of 1872 there was no section corresponding to Section 537 of the present Code, Under Section 537 any omission in any proceeding before a Magistrate does not render that proceeding illegal unless the omission complained of has led to some prejudice to the accused person. The explanation appended to the section provides that in considering whether there has been prejudice or not, the Court must have regard to the fact that the objection raised is one which ought and could have been raised at the trial itself.
5. Now there is nothing in the present case to show that any complaint was made of this omission before the Magistrate and it is also to be remarked that the objection was not made before the District Magistrate in the appeal which was presented to him. Therefore this first ground must fail.
6. The second ground urged before us was that the District Magistrate had not complied with the provisions of the Code regarding appeals in writing his judgment, in other words, that the judgment of the District Magistrate was so short and summary that there was nothing in it to show that he had brought his mind carefully to bear upon the evidence in the case. It is unnecessary to decide whether the District Magistrate has complied with the provisions of the Code or not, because no appeal lay to him against the order of the First Class Magistrate. Section 406 gives the right of appeal only in cases where there is an order for security for good behaviour. The Code makes a careful distinction between an order directing security to be given for keeping peace and an order directing security to be given for good behaviour. It allows an appeal in the latter case only.
7. Then the third point urged before us was that there had been a joinder of trials in the present case. That was not so. The Magistrate's judgment shows that the two cases, i.e., the two opposing factions, were tried separately. Even if the Magistrate had dealt with the cases jointly, the trial would not have been ipso facto illegal. .See Queen-Empress v. Abdul Kadir 9 A. 452.
8. Then the last point urged is that no opportunity was given to the petitioners of producing witnesses in defence. There again the record of the Magistrate does not show that evidence which the petitioners desired to adduce was disallowed. It was not made a ground of complaint before the Distinct Magistrate in appeal and further in the petition which is filed in this Court it is not made a ground of complaint that any evidence which was tendered was disallowed by the Magistrate. This last objection must also fail.
9. The result is that we must decline to interfere in this case and reject the application
10. The Magistrate's proceedings in the case have been very severely criticised, but as a result of all that has been said, I think, this comes to be perfectly clear that his proceedings have not in fact occasioned a failure of justice and on that ground I consider that it is sufficient for us to say that we will not interfere. At the same time I think it is very important that the Magistrate should follow precisely the procedure laid down in the Code of Criminal Procedure. As regards one portion of the Magistrate's proceedings it is certain that he did not follow the procedure contained in Section 115, viz., he did not send with the notice a copy of the order which had been made under Section 112. These omissions are matters which really ought not to take place in criminal proceedings.
11. I quite agree that the Magistrate ought to closely follow the procedure laid down in the Code and strictly adhere to its provisions, because that would lessen the number of revisional applications to this Court.