1. The first point raised by the learned Counsel for the applicants is one upon which there has been divergence of opinion in courts, in India, It appears from the record that the witnesses for the prosecution against the applicants were examined-in-chief up to the. 10th of April, 1922, and on that date the applicants were questioned generally on the case by the trying Magistrate, under the provisions of Section 342, before they were called on for their defence. After that, the witnesses for the prosecution were cross-examined and, further, one witness, a head constable, Ram Gopal Singh, was examined for the first time for the prosecution. The. evidence which he gave was to the effect that he had arrested the applicants. The point taken by the learned Counsel is that by examining this head constable after the statements of the accused had been taken, the trying Magistrate acted contrary to the provisions of Section 342. The learned Counsel is undoubtedly right in that contention. Under the provisions of Section 342 all the prosecution witnesses should have been examined-in-chief before the final questions, were put to the applicants. The applicants were not examined again after the 10th of April., The provisions of this portion of Section 342 are imperative. The words are:
For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, a court...shall for the purpose aforesaid question him generally on the case after the witnesses for the prosecution have been examined and before: he is called on for his defence.
2. But it remains to be considered whether the provisions of Section 537 of the Code, are not applicable. The opposite portion of that section is this:
Subject to the provisions hereinbefore contained, no finding, sentence or order, passed by a court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account of any error, omission, or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment, or other proceedings before or during trial...unless such error, omission, irregularity, want or misdirection has, in fact, occasioned a failure of justice.
3. It certainly appears that in many High Courts it has been hold impliedly that Section 537 has no application in these circumstances, but in this High Court it has been decided that an omission to comply with the provisions of Section 342 does not involve a setting aside of the conviction. -The main authority upon the subject is to be found in the well-known decision of their Lordships of the Privy Council in Subrahmania Ayyar v. King Emperor (1901) I.L.R. 25 Mad. 61 at (96-98). Their Lordships did not, in that case, however, distinguish between an 'error' and an 'irregularity.' The two words clearly do not mean the same thing. I regard the failure to apply correctly the provisions of Section 342 as an error and not as an irregularity, and I do not understand their Lordships to have laid down that an error, which has not in any way prejudiced a person convicted, may not be condoned under the provisions of Section 537 if it is not fatal to the validity of the decision and is concerned with the proceedings rather than the mode of trial. Their Lordships' in that particular case were considering neither an error, nor an omission, nor an irregularity hut an illegality. In that case the trial was vitiated in its inception. A provision of the Criminal Procedure Code had been transgressed, and the result of the transgression was that the court had actually no jurisdiction to hear the case. The court had only jurisdiction to try in one case a person for three offences of the same kind committed within a period of twelve months, and it actually had tried a person for 41 offences committed during a period of two years. Their Lordships held that the course pursued was plainly illegal, and continued:
Upon the assumption that the trial was illegally conducted, it is idle to suggest that there is enough left, upon the indictment upon which a conviction might have been supported if the accused had been properly tried. The mischief sought to be avoided by the statute has been done.
4. They said afterwards:
The remedying of mere irregularities is familiar in most systems of jurisprudence but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted, that this contravention of the Code comes within the description of error, omission or irregularity.
5. And in quoting the decision in Smurthwaite v. Hannay (1894) A.C. 494 reference was made to the pertinent observation of Lord Russell:
Such a joinder of plaintiffs is more than an irregularity; it is the constitution, of a suit in a way not authorized by law and the rules applicable to procedure.
6. The tests to be applied in considering whether a particular infringement of the provisions of the Criminal Procedure Code is one which does or does not come within the purview of Section 53,7 appear to me to be these: Does the error go to the whole root of the trial? Does it in effect vitiate the proceedings? 'Has the court assumed an authority which it does not possess? Has it broken the vital rules of procedure? If the error is of such a nature, the proceedings are vitiated in their very inception and Section 537 has no application. But the mere fact that a certain provision of the Code is imperative does not in itself indicate that a breach of that provision vitiates the whole proceeding. In fact it might very well be argued that in order to create an error there must be some breach of an imperative rule, for, if the matter were discretionary, it would appear that no opportunity for error could arise. 'What I have to consider is the simple point, were the proceedings vitiated? In my opinion they were not vitiated.
7. I come now to the second point: 'Were the applicants prejudiced?,' Now the case against them in respect of the matters to which this head constable deposed had already been disclosed in the previous evidence, and in their examination on the 10th of April, they were actually asked to explain away the very circumstances to which the head constable subsequently deposed. Furthermore, they did not deny their arrest, and with regard to the possession of the property said to have been the subject of theft, their case was that that property had been given to them by the Complainants. It is thus clear that they were not prejudiced by this error. There was an error undoubtedly and the Magistrate should be careful to avoid the error in future. But as the case has been decided correctly on the merits, this error has in no way affected the result.
8. The third point argued was that on the facts the conviction under Section 457 was not made out. I cannot accept this contention. On the facts the applicants were rightly found guilty of lurking house trespass by night with' intent to commit theft.
9. The last point taken is the question of sentence. There I see no reason to interfere.
10. I dismiss the application.