1. This Rule was limited to the ground of non-compliance with the provisions of Section 342 of the Code of Criminal Procedure. The Magistrate has submitted an explanation in which he pointed out that there was an examination of the accused under the provisions of Section 342 as would appear from the record of such examination on the back of the form used for examination under Section 364. We have looked into the record. We are not prepared to say that there has been in this case a substantial compliance with the provisions of Section 342.
2. In that view of the matter, the retrial from the point at which the accused should have been examined under Section 342 would seem to be necessary. But Mr. Mukherjee who has argued on behalf of the petitioners has brought to our notice the fact that out of the sentence of rigorous imprisonment for a period of one month the petitioners have already under, gone the sentence for a period of 22 days. In those circumstances the petitioners have not displayed any great keenness in asking for a retrial, and they have appealed to us to consider whether in the events which have happened the conviction and sentence may not now be set aside and no further action may now be directed. Having regard to all the circumstances of this case, we think, we may stretch a point in favour of the petitioners.
3. We accordingly set aside the conviction and sentence and direct that the bail bonds of the petitioners be discharged.