George Knox, J.
1. A Deputy Magistrate of Azamgarh, Budh Sen, tried one Durgahi Khan, for an offence under the Indian Penal Code. He convicted him of that offence on September 27th, 1911, and in the course of this trial, he arrived at the conclusion that there was ground for inquiry into an offence under Section 211, read with Section 109 of the Indian Penal Code. It has been represented to me by the learned Government Advocate, in the course of the argument today, that Deputy Magistrate, Budh Sen, considered this a case in which a preliminary inquiry should be made and moved the District Magistrate of Azamgarh to have such inquiry held by the Criminal Investigation Department. If Budh Sen had left the matter entirely in the hands of the Criminal Investigation Department, I should have had considerable doubt whether any inquiry held by them would come within the purview of the words of Section 476, 'such Court after making any preliminary inquiry that may be necessary'. But it appears from the record that on the 27th February and on the 2:th February, the learned Deputy Magistrate proceeded to take the statements of Durgahi and of one Zulfan. These he placed upon the record. It is true that neither of the statements in question is headed with the words 'In the matter of so and so'. Bat it is argued before me that these statements were statements of Durgahi and Zulfan taken in the course of the preliminary inquiry, and his successor appears to have regarded them in that light. Deputy Magistrate, Budh Sen, went on leave. His successor took up the proceedings and recorded the following order: 'On a perusal of the record in King-Emperor v. Durgahi decided by my predecessor, Babu Budh Sen, Magistrate of the first class, and the statements of Dargahi and Zulfan subsequently taken down by him in the course of the preliminary inquiry male by him, it appear to me that a false charge of cheating, etc., etc., was actively instigated and abetted by Ram Piari Rai.' The order then goes on: 'I, as his predecessor (sic) in office, order the prosecution of Ram Piari Rai under Section 211, read with Section 109 of the Indian Penal Code, for having abetted the institution of a false charge of cheating in the Court of Second Additional Magistrate at Rangoon. The file is submitted to the District Magistrate for favour of orders as to the trial of the accused (Ram Piari Rai).' The papers reached the District Magistrate on the 26th May, and on the same day there is an order by the District Magistrate, The case is sent to the Court of Pandit L.S. Khare for trial.' It is this order of 6th May 1912, passed by Baba Anand Swarup that I am asked to revise, on the ground that the Deputy Magistrate could not legally pass an order under Section 476 of the Code of Criminal Procedure at the stage when he did pass it, that there were no materials on the record of the case of Ring Emperor v. Durgahi upon which an order could be passed, and that the order which was passed was without notice to the petitioner. The petitioner questions whether the statements of Durgahi and Zulfan can be said to have been taken in a proceeding under Section 475 of the Code of Criminal Procedure. My attention was also called to the great delay that had occurred between 27th September 1911, and 6th May 1912 Owing to the absence of any words to earmark this proceeding and to the further fact which is admitted by the learned Government Advocate, that this preliminary inquiry has been more or less of a secret nature, it would not have been easy to say that these were proceedings taken under Section 476. But from the words in which the order of 6th May 1912 is couched, it is clear that the learned Magistrate who passed the order of 6th May 1911, did so in a proceeding which he understood to be under Section 476 of the Code of Criminal Procedure. The proceedings are certainly of a somewhat extraordinary nature. But after heating all that has been said, I cannot find that they are beyond the letter of Section 476. The action of the Magistrate is not quite what is contemplated by that section, and there is, 410 doubt that this Court has always looked With disfavour upon an order made under Section 476, without notice being given to the persons immediately concerned. At the same time, any irregularity in the proceedings taken under Section 476, is not sufficient ground for either reversing or altering an order passed by a Court of competent jurisdiction (vide Section 537, Criminal Procedure Code). Deputy Magistrate, Badh Sen and his successor-in-office, Deputy Magistrate Anand Swarup, had undoubtedly jurisdiction to take proceedings under Section 476, and the order that I am asked to revise is an order passed by a Court of competent jurisdiction under that section. Had it been shown to me that any irregularity in the procedure had in fact (Occasioned a failure of justice, Section 537 would not, of coarse, apply. Ram Piari Rai has, I understand, been arrested in consequence of this order, but it would be a long step to take, to say that his arrest has, in fact, so far as he is concerned, occasioned a failure of justice. He will have ample opportunity for answering the complaint which has now been instituted against him.
2. Section 476 nowhere says that notice in proceedings under that section shall be given to a person who is immediately concerned thereby. And, while I think that it is always fairest and a course which should be followed that a notice should be given, 1 cannot put the want of notice on a higher ground than irregularities in procedure. The case of Mithan Lal v. King-Emperor 5 Ind. Cas. 17 : 11 Cr.L.J. 20 decided on 22nd December 1909, was brought to my notice. That was a case in which this Court has held that entirely fresh proceedings under Section 476 had been held, and it was in connection with this that my learned brother said that, except under very special circumstances, proceedings under Section 476 of the Code of Criminal Procedure should be taken at an early date after the decision of the original case. The case before me is said to be, and appears to be, a case of very special circumstance. So, on both grounds, it is to be distinguished from the case cited. I decline to interfere and dismiss this application.