1. The question referred to us is whether adoption by the trial Magistrate of summons procedure in a warrant case amounts to an illegality vitiating the entire trial or only an irregulaity curable under Section 537 Cr.P.C.
2. There has been a consensus of judicial opinion on this question referred ever since the decision of the Privy Council in N.A. Subramania Iyer v. Emperor, (1901) 28 Ind App 257 (PC). The question did not directly arise in that case but the principle was enunciated thjat the disobedience to an express provision at to a mode of trial could not be regarded as a mere iregularity. that was reitered in Pulukuri Kotayya v. Emperor, AIR 1947 PC 67. The pronouncement in the later case was more clear tht when a treial wwas conducted in a manner different from that precribed by the Code, the trial was bad and no question of curing an irregularity arose.
3. The question now refered to us, that, however, been driectly answered in a series of cases. It is sufficient to refer to Emperor v. Chinapayan, (1906) LIR 29 Mad 372 (4 Cri LJ 231) and the cases thereafter. that was a case where a warrabnt case wa tries as a summons case and the accused was convicted. The learned Judge set aside the conviction holding that that was something more than iregulairty and that the accused might have possibly been prejidiced by the prodecure adopted by the Magistrate. The other cases which have held the same vuew are Gaya Prasad v. Emperor, AIR 1932 Nag 111-Sufal Golai v. Emperor, AIR 1938 cal 205 and Bandulal Balaprasad v. The State, : AIR1962Bom258 ,. The decisions not conducted as prescruibed by the Code when a warrant case was tried as a summons case and the trial was therefore vitiated.
4. A different view, however, came to be expressed by a Full Bench of the Allahabad High Court in Prem Dase v. State, : AIR1961All590 . While holding that an ilegal procedure was adopted whenb awarrant case was tried as a summons case, the learned Judges. however, took the view that that was a curable irregularity as no prejudice was caused to the accused by the sdopted of a wrong procedure.
5. Mohnlal Nandlal Sharma v. State, : AIR1962Guj231 said in somewhat similar terms that the adoption of proceduire prescried for summons cases by the Magistrate in a warrant cae was mere iregularity and did not vitiate the trial and was curable by the proviions of Section 537, Criminal P.C. if it did not occasion any failure of justice.
6. It is therefore flear that the two later decvisions have struck a discordant note in conflict with the observations of the Privy Council in (1901) 28 Ind App 257 (PC), and AIR 1947 PC 67.
7. The learned Judge of the Cujarat High Court appears to have relied on Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986 at p. 989, which we may appropriately persue inthis context.
'It is true that after the amendment of the Criminal Procedure Code, ab offence under Section 448 is triable as a summons case and Mr. Goswami adopted the procedure prescrbed for a case triable as a warabt case. We are, however, of the opinion that this irregularity does not vitiate the procedings and is curable by the provisions of Section 537 as no prejudice to the accused has been established in the case.'
With great respect, we are unable to find support for the decision of the learned Judge that the converse follows. We cannot regard it as an authority for the position that when a warrant case is tries as a summons case, the trial isnot vitiated but curable by the proviions of Section 537 and that the accused has to establish that prejudice was caused to him,
8. In cases where the tiral does not comply with the code, an indefeasible presumption of prejudice may be drawn. This Court has held in Criminal R.C. 299 of 1959 (AP) that there a warrant case is tried as a summons case, the trial was vitiatede and gave rise to an irebuttable presumption of prejudice.
9. Having regard to the preponderating view taken in the many decisions, which is consistent with the principleenunicated by the Privy Council., our opinion is that when a warrant case is tried as a summons cae, it amounts to an illegality and not an irrgulaity curable under section 537 Criminal Prodecure Code. The reference is answered accordingly and the case will be posted for hearing.
10. Reference answered.