1. This is a reference by the learned Sessions Judge of Benares recommending that an order passed by a Special Magistrate of the First Class under Section 145, Criminal P.C., be set aside, or in the alternative that the order be modified as to costs.
2. It appears that one Bashiruddin started proceedings under Section 145, Criminal P.C., against the opposite party, who are now the applicants before me, alleging that a certain chabutra belonged to him and that the accused were interfering with his possession and were likely to commit a breach of the peace. The Magistrate found that the chabutra was in Bashiruddin's possession and passed orders restraining the opposite party from interfering with Bashiruddin's possession and ordered them severally and jointly to pay to Bashiruddin a sum of Rs. 428-6-0 as costs under Section 148 (3). It appears that the Magistrate recorded the evidence of the witnesses in English and that the evidence of the witnesses was not recorded in the vernacular either by the Magistrate himself or by any other person in his presence. This procedure being in contravention of the provisions of' Section 356, Criminal P.C., constituted an illegality or irregularity, in the opinion of the learned Sessions Judge, such as to vitiate the whole proceedings.
3. As proceedings under Section 145 of the Code are inquiries under Ch. 12 of the Code it is clear that under Section 356 (1) the evidence of each witness should have been taken down in writing in the vernacular by the Magistrate himself, or in his presence and hearing and under his personal direction and superintendence, and should have been signed by him. This procedure was not followed. The learned Sessions Judge states that the Magistrate kept only an English memorandum of the evidence. I think the Magistrate's record amounts to more than a memorandum. He did in fact record the evidence of the witnesses at length and in great detail and I think his record amounts to more than a memorandum but it is certainly in English and there is no vernacular record, so it must be conceded that the provisions of Section 356 have not been complied with.
4. The question then arises whether this error or irregularity or illegality is sufficient to vitiate the whole proceedings. It is argued by the learned advocate for the applicants that the provisions of Section 356 (1) are imperative and that a breach of these provisions amounts to an illegality and not a mere irregularity such as might be curable under Section 537. He has cited certain authorities which more or less support his contention. In the case of Matai v. Anant Ram  A.W.N. 164 a single Judge of this Court set aside an order passed by a Magistrate on account of various irregularities. One of the irregularities specified was that the Magistrate had failed to comply with the provisions of Section 356 since he had recorded the evidence of witnesses in English only and had not kept any vernacular record. It must be noted, however, that this was by no means the only irregularity. It appears to me that the Judge laid great stress upon the non-compliance with the provisions of Section 202. He did not hold that the failure to observe the provisions of Section 356 was of itself and apart from all other considerations sufficient to vitiate the order. This decision therefore does not clearly support the applicant's contention.
5. In the case of Empress v. Barmajit  A.W.N. 145 a conviction was set aside on account of several irregularities. Here again one of the irregularities was that the Judge did not make his memorandum of the evidence at the time when the evidence was actually given and this constituted a breach of the provisions of Section 356. But some of the other irregularities that occurred in the trial of the case were of a graver nature. The learned Sessions Judge in recording the opinion of the assessors had shown that the assessors found the accused guilty although it appears, as a matter of fact, that the assessors found the accused not guilty. Hence, although the conviction was set aside and a retrial ordered, it was certainly not merely or even mainly upon the ground that the provisions of Section 356 regarding the mode of recording evidence had not been complied with. The case of Udit Narain v. Emperor  21 Cr. L.J. 28 does indeed support the applicant's contention. In that case a single Judge of this Court held that as the evidence of witnesses had been recorded in English only and not in the vernacular this amounted to an irregularity which vitiated the trial. With due respect to the learned Judge, however, I do not think this ruling is very satisfactory. . The question whether the irregularity was or was not curable under Section 537 was not even discussed.
6. In the case of Janki Prasad v. Emperor  19 Cr. L.J. 235 a single Judge of the Patna High Court held that where in a trial the Magistrate had recorded the evidence in the Urdu character only, which was not the language of the Court in that province, he had been guilty of an illegality which vitiated the trial, and further that even if it were held to be only an irregularity then it was not such an irregularity as would be curable under Section 537. Reliance is also placed upon a ruling of a Bench of the Calcutta High Court in the case of Sadananda Mandal v. Krishna , Mandal  42 Cal. 381. This was a case under Section 145, Criminal P. C, and is therefore directly applicable to this case. In that case the Magistrate made a memorandum of the evidence in English, but the depositions were not taken down in the vernacular. It was held that the provisions of Section 356 (1) were imperative and that non-compliance with those provisions cannot be condoned. It is perhaps possible to distinguish that case on the ground that in the case before me the evidence was recorded in full and amounts to more than a mere memorandum of the substance of the evidence; but the reasoning of this case does no doubt support the applicant's contention.
7. For the opposite party reference is made to a very recent decision of a learned Judge of this Court in the case of Sankatha Misir v. Bishwanath : AIR1931All2 . The facts of that case are almost precisely on all fours with the case before me. In proceedings under Section 145 the Magistrate had only recorded the evidence of the witnesses in English and their depositions had not been recorded in the vernacular as required by Section 356. The learned Judge distinguished the ruling of the Privy Council in the case of Subramania Ayyar v. Emperor  25 Mad. 61 in which their Lordships remarked that they were unable to regard the disobedience of an express provision of law as to the mode of trial as a mere irregularity. I agree that that ruling can be distinguished, and it has' been distinguished by their Lordships of the Privy Council themselves in a more recent case, Abdul Rahman v. Emperor to which I shall presently refer again. In the case of Subrahmania Ayyar, a man was tried on charges of extortion in respect of 41 criminal acts extending over a period of two years, in contravention of a provision of the Code providing that a man can only be tried at one trial for three offences which have been committed within a period of 12 months. The procedure adopted in that case was one which the Code positively prohibited and, it was possible that it might have worked actual injustice to the accused. There was thus a grave illegality, or irregularity, in the mode of trial. It was an irregularity which went to the root of the trial. Finding that the case of Subrahmania Ayyar was distinguishable, the learned Judge relied upon the case of Bechu Chaube v. Emperor A.I.R. 1923 All. 81, and held that as the applicants in revision had not been in any way prejudiced, and as there was no error in procedure which went to the root of the trial, the Magistrate's order should be upheld.
8. I agree with the learned Judge that the case of Subrahmania Ayyar is distinguishable and that a breach of an imperative rule of procedure does not necessarily vitiate the whole proceeding.
9. A similar view was taken by a Bench of this Court in the case of Emperor v. Jhabbar Mal : AIR1928All222 . In that case the trial Court had omitted to question the accused generally on the case after the witnesses for the prosecution had been examined. The Court did question the accused after the prosecution witnesses had been examined in chief, but did not question him again after the witnesses had been cross-examined and re-examined. The learned Judges held that this was a breach of the provisions of Section 342 (1) of the Code, but nevertheless it was curable under Section 537.
10. I rely strongly upon the decision of their Lordships of the Privy Council in Abdul Rahman v. Emperor. In that case it was held by their Lordships that the provisions of Section 360, which require that the deposition of each witness is to be read over to him, had not been complied with. They then proceeded to discuss whether non-compliance in this respect should vitiate the trial. They distinguished the case of Subrahmania Ayyar and disapproved of two decisions of the Calcutta High Court in which it had been held that non-compliance with the provisions of Section 360 vitiated the trial. Their Lordships summed up their views as follows:
To sum up: in the view which, their Lordships take of the several sections of the Criminal Procedure Code the bare fact of such an omission or irregularity, as occurred in the case under appeal, unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned, is not enough to warrant the quashing of a conviction which in their Lordships' view may be supported by the curative provisions of Sections 535 and 537.
11. In the face of this pronouncement it is no longer open to the Courts in India to hold that the mere fact that an imperative statutory rule of procedure has been broken is enough to vitiate the trial or proceeding. It is clear that the Courts should consider the gravity of the irregularity or omission and whether it might have worked actual injustice to the accused. If non-compliance with an imperative provision in Section 360 is curable under Section 537, as held by their Lordships, it is clear that it is open to this Court to consider whether a breach of a statutory provision under Section 356 is not similarly curable. In my opinion the irregularity complained of may be considered a mere technical irregularity. The evidence of the witnesses was recorded in full and there is no suggestion that the record does not contain a full and accurate account of the depositions. The fact that the applicants were not prejudiced, and that the irregularity cannot possibly be held to have occasioned a failure of justice, is apparent inter alia from the fact that when the applicants applied in revision to the Sessions Judge they set forth five grounds alleging certain illegalities or irregularities but it never occurred to them to set forth a ground complaining of the irregularity of failing to record the depositions in the vernacular. The point was raised by the learned Sessions Judge himself. He was no doubt perfectly entitled to raise that point although it had not been raised by the applicants themselves, but it is quite obvious that the applicants did not consider themselves in any way prejudiced by the procedure adopted by the trial Court and that no failure of justice was occasioned thereby.
12. I hold therefore that I should not be warranted in setting aside the order under Section 145 on the ground of non-compliance with the provisions of Section 356, as the irregularity did not go to the root of the trial and did not prejudice the applicants or occasion a failure of justice.
13. Another point remains, namely, the amount of costs which the applicants have been ordered to pay to the successful opposite party. The property in dispute is said to be not more than Rs. 300 or Rs. 400 in value. I do not think that the value of the property can by itself be taken as a fair test of the costs which should be awarded in a case of this sort but it does seem to me that the trial Court has allowed costs on too liberal a scale. It is very unfortunate that the case lasted so long. There were no less than 26 hearings and it took about 11 months to decide. It appears however that neither party can be held to blame for the prolongation of proceedings. The complainant employed two mukhtars daily paying them Rs. 8 each per day. In my opinion the complainant should have contented himself in a case of this sort with engaging one mukhtar and I think the trial Court was too liberal in ordering the opposite party to pay for two mukhtars daily. The complainant is entitled to Rs. 12-6-0 court-fees and to the services of one mukhtar daily at Rs. 8. This amounts to Rs. 12-6-0 plus Rs. 208 or a total of Rs. 220-6-0 instead of Rs. 428-6-0 which was allowed by the trial Court.
14. It has been further argued that Fida Husain and Kallu, son of Bafati, two of the applicants, took very small interest in the proceedings and engaged no counsel and therefore they should not be made liable for costs, as the third applicant Kallu son of Zahur was the principal contestant. I do not think that the first-named applicants can escape liability for costs as the complainant was compelled to take action against them also and they denied the allegations of Bashiruddin and were at least interested in the result. I therefore maintain the order passed by the trial Court regarding possession but modify the order regarding costs only to this extent that I substitute the sum of Rs. 220-6-0 instead of Rs. 428-6-0.