1. This case has been reported by the Sessions Judge of Ghazipur under Section 438, Criminal Procedure Code, on the ground that the proceedings of the Magistrate in convicting the accused were illegal by reason of non-compliance with Section 342, Criminal Procedure Code, The Sessions Judge has further expressed the opinion that he was not justified in interfering with the Magistrate's finding of fact but that, if he had been so justified, there were reasons for holding that the conviction was improper. The illegality in procedure complained of is this.: The case was a warrant case. The law permits the Court after the examination-in-chief of the prosecution witnesses or some of the prosecution witnesses to examine the accused. The examination of the accused at this stage is obviously from the context, an examination intended to enable the Court to decide whether it should frame a charge (Section 253, Criminal Procedure Code). There may be cases where the Magistrate sees an easy answer to the prosecution evidence and desires that answer to be given by the accused before he discharges the accused. If the Magistrate frames a charge the accused is then given an opportunity of cross-examining the prosecution, witnesses that have been heard. The remaining witnesses, if any, for the prosecution are then examined and cross-examined and last of all the accused shall be called upon to enter upon his defence and produce the evidence (Section 256, Criminal Procedure Code).
2. Section 342 adds something further to Section 256. It requires the Court to question the accused generally on the case just before the accused is called upon to enter upon his defence. In this case the Sessions Judge states that the Magistrate questioned the accused under Section 342 not just before he was called on for his defence but at the stage when the accused should have been questioned merely with a view to enable the Magistrate to decide if it was necessary to frame a charge. The Sessions Judge relying on a case reported in Mitarjit Singh v. Emperor A.I.R. 1922 Patna 158, though the Sessions Judge has occasioned this Court considerable trouble by referring to the wrong case, has held that this defective procedure was prejudicial to the accused because the prosecution witnesses were warned before their cross-examination of the weak points in their prosecution evidence. He has also followed this ruling in holding that the defect was an illegality which could not be excused under Section 537 Criminal Procedure Code. On the other hand, the Magistrate has cited a decision reported in In re Varisai Rowther A.I.R. 1923 Mad. 609 as taking a different view to that held by the Patna High Court. In this decision a Full Bench with one dissentient held that if the accused is examined as permitted by Section 253 he need not be examined again after the cross-examination and re-examination of the witnesses already heard, unless new witnesses are heard after the examination under Section 253. Even in this case it was held that any irregularity could be excused under Section 537, Criminal Procedure Code.
3. It appears to me that the intention of the law is that the accused should be examined just before he enters on to his defence and produces his witnesses, i.e., after all the prosecution witnesses have been completely done with. At the same time it seems to me clear that any irregularity in this direction will come within the purview of Section 537 and will only call for interference, if it has occasioned a failure of justice. In the present case there is no ground for holding that there was any failure of justice occasioned by reason of this irregularity.
4. I should, therefore, reject the reference of the Judge so far as it asks me to interfere on the ground of irregularity of proceedings by the Magistrate.
5. The Sessions Judge has stated that he is not justified in interfering with a conviction on the merits. This does not appear to me correct. Under Section 435 he may examine the record of an inferior criminal Court for the purpose of satisfying himself as to the propriety of any finding, and if satisfied that any finding is improper may report it to this Court. The power of this Court to interfere on the merits is undoubted, but this Court will not exercise its power so as virtually to give a right of appeal, and in reporting a case under Section 435 the Sessions Judge must bear in mind this limitation which exists in practice as regards the exercise of the High Court power of revision under Section 439, Criminal Procedure Code. A case should not be reported on the ground that a conviction is bad on the merits unless it is very clear that the conviction is wrong and that there can be no reasonable doubt of the matter.
6. In the present case, the Sessions Judge has impugned the conviction by the Magistrate on three grounds. The first ground is that prosecution witnesses had something in common with the complainant and had some reason to be on bad terms with the accused. Another ground is that the presence of the witnesses on the spot in time to see the accused causing damage to the crops (mischief being the offence charged) was not explained sufficiently. A third reason was that the evidence of a Commissioner who saw the crops a month after the event was insufficient for the purpose of holding that damage had been caused by the accused.
7. I consider that the reasons given by the Sessions Judge for doubting the propriety of the conviction are not such as to justify interference by this Court in revision. To interfere on these grounds would, in my opinion be undistinguishable from allowing an appeal. Accordingly I direct that the record be returned.