R.L. Narasimham, C.J.
1. This is a petition in revision against the appellate judgment of the Sessions Judge of Cuttack allowing Criminal Appeal No. 7-N of 1957, on his file and setting aside the conviction and sentence imposed on the opposite party by a Third Class Magistrate of Tigiria and remanding the case for rehearing. Nine members of the opposite party were tried in the Court of that Magistrate for offences under Sections 143/447 I. P. C. and 426 I. P. C.
The learned Magistrate convicted them all under Section 143/447 I. P. C. but acquitted them of the offence under Section 426 I. P. C. On appeal before the learned Sessions Judge the main question of law that was urged was that the learned Magistrate omitted to comply with the provisions of Section 242 Cr. P. C. The learned Sessions Judge thought that such an omission was an incurable illegality. He relied on Express Dairy Ltd. v. Corporation of Calcutta AIR 1950 Cal 61 and Mastan Singh v. State AIR 1953 Pepsu 125. Hence, without examining the question of prejudice he set aside the conviction and sentence and directed retrial.
2. Undoubtedly, there is sharp conflict of judicial opinion as to whether non-compliance with the provisions of Section 242 Cr. P. C. during the trial of a summons case is illegal or whether it is only an irregularity, which in the absence of prejudice, would not justify the setting aside of the conviction and sentence. The leading decision in favour of the former view is AIR 1950 Cal 61, on which the learned lower appellate Court has relied. There are also two decisions of the Mysore High Court reported in Ramamurthy v. State of Mysore, AIR 1954 Mys. 164 and Gangappa v. State of Mysore, AIR 1956 Mys 63 in support of this view. On the other hand the Patna High Court in a Division Bench decision reported in Rajeshwar Prasad Singh v. Province of Bihar, AIR 1949 Pat 323 discussed this question fully and overruled the previous single Judge decisions on the subject and held that such an omission to comply with the provisions of Section 242 Cr. P. C. would be a mere irregularity which, in the absence of prejudice, would be cured by Section 532 Cr. P. C. (sic). The previous case law on the subject has been fully discussed in that judgment and with respect I am inclined to agree with that view. In Nayan Ram v. Prasanna Kumar, AIR T953 Assam 161; Ahmed v. State (S) AIR 1955 Hyd 174, Abdul Kadir v. Gafur Sheikh AIR 1956 Assam 127, State of Rajasthan v. Bhanwarlal AIR 1957 Raj 296 and P. Mukherji v. State 1957 Cri. LJ 86 (Pat) a similar view was taken.
3. There is no reported decision of this Court on the question though in an unreported decision of this Court in Criminal Revn. No. 313 of 1949 the then Chief Justice (Ray C. J.) thought that such an omission was an incurable illegality. But the case law on the subject was not fully discussed in that case and with great respect I am inclined to prefer the Division Bench decision reported in AIR 1949 Pat 323.
4. In my opinion, therefore, the learned lower Court should not have set aside the conviction and sentence without further examining the question as to whether non-compliance with the provisions of Section 242 Cr. P. C. has, in fact, resulted in prejudice. The parties were represented by lawyers and there was full cross-examination of the prosecution witnesses and also examination of the defence witnesses.
The lower appellate court must therefore re-examine the question of prejudice and satisfy itself that prejudice was in fact caused. He should also re-hear the appeal on merits and dispose of it according to law. His order dated 28-1-1958 setting aside the conviction and sentence passed by the trying Magistrate and remanding the case for rehearing is set aside and he is directed to re-hear the appeal, No. 7-N of 1957, on his file and dispose of the case according to law, bearing in mind the observations contained in this judgment.
5. The revision is allowed.