1. This case has been heard in connexion with Criminal Revision No. 246 of 1933, but as the points for consideration in the two cases are quite distinct we have preferred to deal with them in separate judgments. The two applicants were accused of an offence under Section 323, Penal Code, in what is said to be a counter case to the one dealt with in Criminal Revision No. 246 of 1933. The Magistrate found the applicants guilty and sentenced them to small fines, and further demanded security under Section 106, Criminal P.C. The learned Sessions Judge has referred the matter to us with a recommendation that the conviction and sentence passed on the applicants and the order passed under Section 106, Criminal P.C., be set aside. The reasons given are that the proceedings were irregular or illegal because the statement of the applicant, Aslahuddin, was never recorded by the trying Magistrate, and further that the Magistrate did not stay proceedings when an application was made under Section 526, Clause (8), Criminal P.C., for an adjournment in order to allow an application for transfer to be made to the Sigh Court. The Judge has remarked that in both cases the provisions of the Criminal Procedure Code, are mandatory and that the Magistrate was bound to obey them.
2. An regards the first point we presume that the learned Judge intended to refer do Section 342 and not Section 364, Criminal P.C., which relates only to the method of recording the statement of an accused person. Under Section 342, Criminal P.C., the Court must question the accused generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. In the present case the accused, Aslahuddin, was said to be ill on 20th March, and was allowed to appear on that date by pleader under Section 205, Criminal P.C. When the pleader was asked to make a statement on behalf of Aslahuddin, however, be replied that he knew nothing about the facts of the case. There was a subsequent adjournment, but it does not appear that the accused intended his pleader to appear for him throughout or to forego the right of having his statement recorded. It has been suggested that the failure to record the statement of the accused was only an irregularity which can be cured under Section 537, Criminal P.C. To cure an irregularity in procedure, however, it is necessary for the Court to be satisfied that the irregularity has not occasioned a failure of justice, and we agree with the learned Sessions Judge this where the accused himself made no statement and his pleader disclaimed all knowledge of the facts of the case it is impossible to hold that there has not bean a failure of justice. For this reason we find it necessary to accept the reference and we need not, therefore, consider the second part of the reference which relates to the failure of the Court to adjourn proceedings.
3. We, therefore, accept the reference and set aside the order of conviction and the sentence passed against the applicants together with the order under Section 106, Criminal P.C. As the present case is apparently a cross case to the one in Criminal Revision No. 246 of 1933, in which the present opposite parties have been convicted and sentenced, we think that it is necessary, although the matter is not one of great importance, to send back the case for retrial and we, therefore, direct that the record be sent to the Magistrate concerned through the District Magistrate in order that the trial may be completed in accordance with law.