1. This case has been referred to us by Govinda Menon, J., because there appeared to be a conflict between the decision of Burn, J., in Ponnammal v. Salaxi Ammal 1933 M.W.N. (Cri.) 233 and that of Jackson, J., in Venkatasubba Iyer v. Soundararaja Iyengar 1929 M.W.N. (Cri.) 5.
2. The respondent filed a complaint before the Stationary Sub-Magistrate of Ramnad against three persons. The allegations against the first accused constituted an offence under Section 355, Indian Penal Code, which is a warrant case, since the offence is punishable with two years rigorous imprisonment. Against the second and third accused, the offence alleged was one punishable under Section 352, Indian Penal Code, which is a summons case, being punishable with only three months' imprisonment. These offences were committed by the three accused during the course of the same transaction. It is clear that under the circumstances the procedure to be adopted is that laid down for a warrant case; because otherwise these three accused could not be tried together, for a warrant case clearly cannot be tried by the procedure laid down for summons cases. If any authority was needed for this position, Raghavalu Naicker v. Singaram : (1918)34MLJ369 may be referred to, where although there was only one accused he was tried for offences punishable for more than six months' rigorous imprisonment and for less than six months' im-prisonment respectively, committed in the course of the same transaction.
3. At the second hearing, before any witnesses had been examined, the complainant arrived late. When the case was called at the early part of the day, at 11-30 a.m., the complainant was absent. The Sub-Magistrate thereupon passed an order under Section 259 of the Criminal Procedure Code, discharging the accused. The complainant later appeared and said that he had been inadver-tently delayed and asked the Magistrate to again inquire into the matter. The Magistrate examined the complainant and found that he had had good cause for his absence, and passed the order:
Take the case on file under Section 355, Indian Penal Code against the first accused and under Section 352, Indian Penal Code against accused 2 and accused 3.
4. He gave the case a fresh number. He proceeded with the trial and all the three accused were fined. The matter was taken in appeal; and the appeal was dis-missed. The complainant thereupon filed a revision case in this Court, alleging that the trial was vitiated by an illegality, to wit, that the Magistrate had no juris-diction to try the case in the absence of a fresh complaint after discharging the accused. This objection was taken in this Court for the first time.
5. It is undoubtedly true, as Burn, J., and King, J., said in Ponnammal v. Salaxi Ammal 1933 M.W.N. (Cri.) 233 and Salt Sogmal v. Simhachalam 1936 M.W.N. (Cri.) 148 respectively, that a Magistrate who has discharged the accused has no jurisdiction to set aside his order of discharge. The only course is to take fresh cognizance of the case on a proper complaint. That does not, however, in our opinion mean that the same complaint upon which the Magistrate originally took cognizance cannot be extracted from the old file and used as a foundation for the new trial. To require a complainant to make a copy of the old complaint or draft a new one, so that it can be said that an indepen-dent complaint has been filed seems to us quite unnecessary. The decisions just referred to, and on which reliance was placed by the accused in this connection, do not justify such a contention. The only irregularity in this case, so far as we can see, is that the Magistrate did not strictly comply with the provisions of Section 200, Criminal Procedure Code, and examine the complainant upon oath. It is true that Section 200 does not actually say that the Magistrate must examine the complainant with regard to the facts alleged in the complaint; but the clear object of Section 200 would be frustrated unless the examination had reference to the facts leading up to the offence alleged in the complaint. The Magistrate, as already said, contented himself with ascertaining whether the complainant had justifiable reason for not appearing in Court at the hour at which the case had been posted. The failure of the Magistrate to record a fresh sworn statement a seems to us, however, to be a very minor irregularity. The Magistrate had already satisfied himself that there was some substance in the complaint, which justified his taking the case on file and proceeding with the trial; and so except for a techni-cal compliance with the law, there was no purpose in again examining the complain-ant. A similar case came before Jackson, J., in Venkatasubba Iyer v. Soundararaja lyengar 1929 M.W.N. (Cri.) 5 where the learned Judge pointed out that the ' only irregularity lay in his (the Magistrate's) failing to take a sworn statement.' ' I cannot see ' the learned Judge added, ' that accused was prejudiced by this irregularity.' In that case, too, the old complaint was taken as the basis for the new trial. We agree with Jackson, J., that the failure of the Sub-Magistrate to take a fresh sworn statement was a minor irregularity that can be cured by Section 537. Criminal
6. Procedure Code, since it has led to no failure of justice. In the explanation to Section 537, it is said that:
In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
7. As already stated no objection was taken until the revision case was filed in this Court. The revision case is dismissed.