1. This is a Reference by the Acting Sessions Judge of Poona with respect to the conviction of Accused Nos. 1 and 2 for voluntarily causing hurt under Section 323, Indian Penal Code. The ground on which the learned Judge recommends to us that the conviction and sentence should be quashed, is that the Magistrates recorded evidence at some length, but omitted to record any statement of their reasons for such conviction as required by Section 263, Cr.P.C. Then the letter of refer-once says that there was delay in lodging the complaint; that the excuse that the complainant could not make the complaint earlier was false; that she alleged that she was an in-door patient, whereas her in juries were slight, and she was treated as an out-door patient only; and that certain discrepancies in the evidence rendered the above defect more than a formal defect.
2. The dispute in this case was a family squabble. The complainant is the mother-in-law and accused No. 1 is her son-in-law. The remaining accused were relations of the son-in-law. The Magistrates heard the case, and took down a considerable body of evidence for the prosecution. The defence Pleader said he had no evidence to call on behalf of the defence. The order was: 'Accused Nos. 1 and 2 are convicted and sentenced to pay a fine of Rs. 15 each, or in default to suffer simple imprisonment for ten days. Section 323, Indian Penal Code. Benefit of doubt is given to accused Nos. 3 and 4, and they are, therefore, acquitted.' In effect the Magistrates were chivalrous enough to give the benefit of the doubt to the two ladies accused Nos. 3 and 4, and to impose on the men accused Nos. 1 and 2 a small fine.
3. We have read the evidence, and there is, undoubtedly, ample evidence to justify the finding that the complainant, the mother-in-law, was attacked and injured by accused Nos. 1 and 2. The trouble arose apparently over an alleged right of way which the accused's party were trying to block up. We fully recognise the importance of the directions in Section 263, Cr.P.C., and that the Magistrates should strictly adhere to them. We also think that it was quite proper of the learned Sessions Judge to draw our attention in this particular case to the omission by the Magistrates to comply strictly with the directions in that section.
4. But, on the other hand, there is another section to be considered, namely, Section 537, Cr.P.C., which gives us a discretion not to interfere in revision, even where there is an error, omission or irregularity in the order or judgment or other proceedings, unless it has in fact occasioned a failure of justice. I have no mind to whittle away any past decisions of this Court, which have held that in those particular cases the omission did amount to a failure of justice. But, in the present case, we are satisfied that no failure of justice has been caused, and that the omission to state in an additional line or two the reasons for the finding, is really in the nature of a technical omission, and not one of grave nature in the present case. In other, words, we have no doubt that the accused Nos. 1 and 2 were rightly convicted.
5. Further, this is an application in revision, and not an appeal, and this also is a discretionary remedy. So really here we have a double discretion to exercise.
6. Under all the circumstances of the case, therefore, we think that to send this family squabble back again to the Police Court for a re-hearing or for the matter of that, to quash the conviction altogether, would really not be a course, which would be suitable to adopt in the present case. Under those circumstances, we are not disposed to interfere in revision and we will direct the papers to be returned.
7. I concur. The omission to comply with Clause (h) of Section 263, Cr.P.C. on the part of the Bench Magistrates, in my opinion, merely amounts to an irregularity which can be cured under Section 537, Cr.P.C. inasmuch as the case was a non-appealable one, and there was clear evidence justifying the conviction. It can, therefore, be assumed that the conviction was based on the Magistrates' belief of that evidence; and it is an omission which has not in fact occasioned failure of justice. It is not a case of a direct contravention of some provisions as to the mode of trial like that referred to in Subrahmania Ayyar v. King-Emperor 25 M. 61 : 3 Bom. L.R. 540 : 11 M.L.J. 233 : 28 I.A. 157 : 5 C.W.N. 866 : 2 Weir. 271 : 8 Sar. P.C.J. 160 . The mere fact that this Court in the case of Queen-Empress v. Shidgauda 18 B. 97 : 9 Ind. Dec. 573 or in other cases, has set aside the conviction for a similar omission, is not, in my opinion, sufficient ground for holding that in every such case the Court should set aside the conviction That would be contrary to what has been laid down in very clear-terms by Sir Lawrence Jenkins as to the discretionary power which the High Court exercises in revision. In his judgment in Emperor v. Bankatram Lachiram 28 B. 533 : 6 Bom. L.R. 379 : 1 Cr.L.J. 390 he says (at page 565):
This discretion ought not to be crystallized, as it would become in course of time, by one Judge attempting to prescribe definite rules with a view to bind other Judges, in the exercise of the discretion, which the Legislature has committed to them.
8. Here I think our discretion should obviously be exercised in favour of upholding the conviction rather than upsetting it because of a technical error.