1. The petitioners in this case were convicted on a summary trial of an offence under Section 323, Penal Code. The main point which has been urged by the learned advocate for the petitioners is that the conviction should be set aside and a retrial ordered owing to the failure on the part of the learned Magistrate to comply with the provisions of Section 256 (1), Criminal P.C. Admittedly, the witnesses for the prosecution were cross-examined immediately after their evidence-in-chief had been taken on 22nd August 1942. No adjournment was granted as contemplated by Section 256 (1) of the Code, nor did the learned Magistrate record any reasons in writing for having the witnesses cross-examined forthwith. At the same time, the petitioners were re-presented by a pleader at the trial and no objection appears to have been raised to the procedure which was adopted by the learned Magistrate.
2. It is argued by the learned advocate that this defect of procedure cannot be treated as a mere irregularity and, in support of his contention, he has referred me to a decision of the Madras High Court in ('27) 14 A.I.R.1927 Mad. 78 In re Raju Achari in which Jackson J. made certain observations to the effect that failure to comply with the provisions of Section 256 (1), Criminal P.C. cannot be regarded as an irregularity curable Under Section 537 of the Code. In that case, however, it appears that the accused person was probably prejudiced on account of the failure on the part of the Magistrate strictly to observe the provisions of Section 256 (i) ot the Code, as he was not represented by a pleader, if Jackson J. intended to lay down a Rule of general application that in all cases of non-compliance with Section 256 (1) of the Code, Section 537 of the Code has no application I must respectfully dissent from him. Section 537 provides that 'no finding, sentence or Order passed by a Court of competent jurisdiction shall be reversed or altered under, Chap. 27 or on appeal, or revision on account--(a) of any error, omission or irregularity in ... proceedings under this Code ... (d) unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice.'
3. The explanation goes on to state that: 'In determining whether any errror, 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 proceeding.' It seems to me that, in view of the language which has been used by the Legislature, it is precisely in a case such as that with which we are now dealing that section 537 should be applied. The petitioners were represented by a pleader on 22nd August 1942 and this pleader appears to have cross-examined the prosecution witnesses at length. If he had felt any difficulty in doing so he could easily have recorded an objection on that day but he does not appear to have done so. This being the case, I am not prepared to interfere with the decision of the learned Magistrate and his Rule must be. discharged.