1. This is a reference from the Sessions Judge of Benares recommending that the order passed by the Magistrate in some proceedings under Section 145, Criminal P.C. be set aside and that a fresh inquiry be ordered by some other Magistrate. The Magistrate had followed the earlier provisions of Section 145, Criminal P.C., and had declared one of the disputing parties to be in possession of the land but the Sessions Judge held that as the Magistrate had only 'kept a memorandum of the evidence recorded by him in English' he had acted in a manner contrary to the provisions contained in Section 356, Criminal P.C., so that there was no legal evidence on which a finding could be based.
2. The reference has been opposed by Mr. Ambika Prasad, who has argued that the Magistrate, in only recording a memorandum of the evidence, was not guilty of anything more than an error or irregularity which could be cured by Section 537, Criminal P.C.
3. Under Section 145, Sub-clause (4), Criminal P.C. (it is not suggested that earlier provisions have not been complied with):
The Magistrate shall then .... peruse the statements so put in, hear the parties, receive all such evidence as may. be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide...
4. There was evidence before the Magistrate: under Section 3, Sub-clause (1), Evidence Act. 'Evidence' means and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry. There was also documentary evidence, because we know that an order of the revenue. Court was before the Magistrate in which an objection on behalf of one of the parties in a demarcation proceedings was dismissed on 29th April 1929.
5. The oral evidence however according to the Sessions Judge was not 'legal evidence' because it was not recorded in the manner provided by Section 356, Criminal P. C; it is admitted that the evidence was not recorded according to Section 356, but it is argued that a distinction must be drawn between the mode of trial and the procedure, and that the provisions of Section 356 only refer to the procedure at the trial, namely, the mode of taking and recording evidence. The mode of trial is set forth in Section 145, and if that section be read alone there is no fault to be found with the procedure of the Magistrate, because he did receive the evidence produced by the parties and he did consider it, and it is only his mode of recording it that was wrong.
6. In the case of Subramania Ayyar v. Emperor  25 Mad 61 their Lordships of the Privy Council have remarked:
Their Lordships are unable to regard the disobedience to an express provision of law as to the mode of trial as a more irregularity...It would be an extraordinary extension of such a branch administering the criminal law (i. e. remedying irregularities) 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.
7. In the case before their Lordships the appellant had been charged with 41 different offences, and as this was 'disobedience to an express provision of law to a mode of trial' it could therefore not be regarded as a mere irregularity. This case is clearly distinguishable from the present one, in which the mode of trial is prescribed by Section 145, Criminal P.C., against which there has been no offence.
8. In the case of Bhechu Chaube v. Emperor A.I.R. 1923 All. 81 a single Judge of this Court of great experience in criminal matters held that when a Magistrate had acted contrary to the provisions of Section 342, Criminal P.C., the trial was not vitiated, because the error of the Magistrate had not in any way prejudiced the person convicted, and ho goes on:
The tests to be applied in considering whether a particular infringement of the provisions of the Criminal Procedure Code is one which docs or does not come within the purview of Section 537 appears to me to be this: 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 proceedings.
9. After this he goes on to discuss whether the applicants were prejudiced by the error, and finds that they were not. A somewhat similar line of argument was taken in the case of Nga Hla U v. Emperor A.I.R. 1925 Rang. 258. If these principles be accepted as I, think they must be. it appears to me that in the case before me now there was an error in procedure which neither went to the root of the trial nor prejudiced the parties. The evidence before the Magistrate was exactly the same as that which he would have had before him if he had followed the correct procedure, and recorded the statements of the witnesses in the manner laid down in Section 356. I' think therefore that it is not necessary and would in fact be wrong, to set aside the Magistrate's order and direct another; inquiry. The reference is therefore rejected and the record may be returned.