JUDGMENT
John Bucknill, J.
1. This is an application in Criminal Revisional Jurisdiction. The facts are very simple but two points are raised which, as they stand, are somewhat peculiar. Three men were convicted of criminal trespass under Section 447 of the Indian Penal Code and sentence to pay a fine of Rs. 10 each. The affair was evidently a very trivial one.
2. Now, in the first place, it would appeal that the accused were examined under Section 342, Criminal Procedure Code, on the 9th November 1921 and before the prosecution witnesses who were summoned had been cross-examined. It is quite true that it would seem that on the 9th of November the accused asked that there should be an adjournment in order to enable them to prepare properly the cross-examination of tie prosecution witnesses, and this was granted. The learned Vakil for the applicants however, points out that although this adjournment was given at the instance of the defence it does not take away from the Magistrate the necessity for examining the accused under Section 342, Criminal Procedure Code, after the close of the prosecution case. I am afraid that he is probably technically correct although it seems to be carrying the operation of this section to a very extreme aspect.
3. The second point which is here raised is to the following effect. The applicants appealed to the District Magistrate from the decision of the Sub-Deputy Magistrate of Aurangabad by whom they had been convicted on the 30th November 1921. It is said at the Bar that on the day when the matter came before the District Magistrate, that is to say, on the 20th December 1921, some of the legal practitioners who were accustomed to practise before the District Magistrate owing to political reasons decided to absent themselves from the Court for some few days. In consequence of this, when the case was called on nobody appeared for the appllants and the District Magistrate thereupon dismissed the appeal for what he calls default. It is urged by the learned Vakil for the applicants that this is not the proper attitude for the Court to have adopted and that, even though so one may appear in a criminal appeal, it is the duty of the Court at any rate to examine the matter and to come to some sort of decision on the merits. I am inclined again to think that the learned Vakil is here right.
4. For these reasons, I think that in this case it is my duty, to interfere and to send the matter back to the Trial Court for a rehearing from the date at, which the irregularity under Section 342, Criminal Procedure Code, took place.
5. The conviction is set aside and the fines, if paid, will be refunded.