1. This is a reference by the Sessions Judge of Cawnpore recommending that the convictions of the accused Narain Das and Chhote Singh and the sentences passed on them should beset aside and they be either discharged or a re-trial ordered.
2. The bullock in question belongs to a family of which Narain Das is a senior member. Chhote Singh, accused, is his mukhtar-am. The animal was employed for driving a cart employed in connexion with the proprietor's brick-kiln. The bullock was first found wounded in the month of February 1925 and the driver Ramdeo was prosecuted and convicted and a fine inflicted on him. It is not probable that the owner and the mukhtar-am came to know all the circumstances of the prosecution. In spite of this conviction a constable again found the bullock being worked in a cart on the 3rd of April Ist while severely wounded. This time the driver was one Mania Singh who was prosecuted and a fine imposed on him. In the course of the trial the learned Magistrate came to know the names of the proprietor and his mukhtar-am and issued summonses to them. They have been convicted and sentenced by the same learned Magistrate.
3. The learned Sessions Judge has pointed out three irregularities in the trial of this case. For the purposes of this reference it is sufficient to consider only one of these. There was no formal complaint before the Magistrate, nor was there any report in writing made by any police officer against the present accused within the meaning of Sub-clauses (a) and (b) of Section 190(1). The taking of cognizance of the offence must, therefore, have been under Sub-clause (C) of that sub-section. The learned Magistrate in his explanation has suggested that inasmuch as police officers were examined as witnesses in the case against Mania Singh he received information from them and not from any person other than a Police Officer. But if the case did not fall under Sub-clauses (a) and (b), Section 190(1) than it must be deemed that the Magistrate took cognizance of the offence upon his own knowledge or suspicion that such offence had been committed. In that case also the taking of cognizance of the offence would fall under Sub-clause (c). In this view Section 191 became applicable and it was the duty of the Magistrate to inform the accused that he was entitled to have the case tried by another Court. This admittedly was not done. Section 191 is imperative, and it says that the accused shall before any evidence is taken be informed etc. It has been held in several cases by this Court that a failure to inform the accused under Section 191 is not a mere irregularity which is cured, by Section 537, but that it vitiates the trial. I may refer only to the cases of Emperor v. Chedi (1905) 28 All 212 and Chander Sen v. Emperor AIR 1923 All 383.
4. It has been pressed upon me that no re-trial should be ordered; but in view of the fact that there was a previous prosecution of the driver Ramdeo, which resulted in his conviction, I am of opinion that a re-trial should take place. The convictions of the two accused and their sentences are accordingly set aside and the case is sent back for re-trial. The District Magistrate may either try the case himself or send the case for trial to any competent Magistrate other than the learned Magistrate who tried it before.