1. This is a reference from the learned Sessions Judge of Chittoor. In four appeals the Joint Magistrate of Chandragiri has ordered a re-trial of the appellant because certain witnesses at the original trial gave evidence in English and their evidence was not translated to the appellant as required by Section 361, Criminal Procedure Code.
2. The Sub-Divisional Magistrate, in my opinion, was right in holding that the Code lays down that such translation should be made; and with all respect I do not agree with the ruling in Hari Narayan Chandra v. Emperor : AIR1928Cal27 , that the first two paragraphs of Section 361 are mutually exclusive. An accused person is often in a much better position than his Pleader to follow the drift of the evidence and it is obvious that he ought to be kept informed of what is being said, But the Sub-Divisional Magistrate misdirects himself when he observes that the irregularity cannot be cured under Section 537, Criminal Procedure Code. No doubt, after Subrahmania Ayyar v. King-Emperor 25 M. 61 : 28 I.A. 257 : 11 M.L.J. 233 : Bom. L.R. 540 : 5 C.W.N. 366 : 2 Weir. 271 : 8 Sar. P.C.J. 160 (P.C.) an idea prevailed that Section 537, Criminal Procedure Code, did not apply to the mandatory provisions of the Code, although there is nothing in the section itself to give it such a restricted scope. But the ruling in Abdul Rahman v. Emperor , has dispelled that idea, and Section 537 may be taken to cover an irregularity in the widest senesce of that term, provided there has been no failure of justice. The Sub-Divisional Magistrate ought not to have ordered re-trial in these cases without satisfying himself whether or no failure of justice had been occasioned.
3. With these observations his order in all four cases is set aside, and he is directed to re-hear the appeals.