ORDER
Brij Narain, J.C.
1. This is a reference by the learned Sessions Judge, Agartala, Tripura, under Section 438, Cr. P. C., by which recommendation has been made that the conviction of Suresh Karmakar under Section 379, I. P. C., be set aside.
Suresh Karmakar has been convicted by Sri S. C. Kar, Magistrate, 1st Class Khowai, and not Kailashahar as has been incorrectly mentioned by the learned Sessions Judge in his reference. The learned Sessions Judge has committed another mistake in mentioning in his order of reference that Suresh Karmakar has been fined Rs. 50/- when as a matter of fact the learned Magistrate had imposed fine of Rs. 40/- only on him. The learned Sessions Judge has shown only Suresh Karmakar as the petitioner when as a matter of fact Suresh Karmakar, Upendra Chandra Karmakar and Surendra Chandra Sukla Baidya were the three petitioners in this case and all of them had been convicted by the learned Magistrate.
2. Ishu complainant alleged that the petitioners had harvested the paddy crop raised by him on 1 kani of disputed land on 23-11-1952 and they had misappropriated the same. The petitioners denied that the paddy belonged to the complainant and another accused Parabat denied his presence on the spot at the time of the occurrence.
3. The learned Sessions Judge was of the opinion that the examination of the accused under Section 342, Criminal P. C., on 21-11-1953 after the accused had entered their defence was illegal. He was further of opinion that the charge framed by the learned Magistrate was defective and as no finding was given with reference to another charge under Section 427, I. P. C., the proceedings were vitiated. Lastly it has been mentioned that the evidence on the record has not been properly weighed by the learned Magistrate and so there has been a miscarriage of justice. The complaint lodged by Ishu in this case was also said to be defective merely because it did not disclose full facts.
4. So far as the first point is concerned I find from the record that 21-11-1953 was never fixed for hearing in this case and as the examination of the accused shows that it was recorded before the accused had (entered?) on their defence.
I think the contention of the complainant that the date written by the learned Magistrate at the bottom has been incorrectly shown by sheer accident as 21-11-53 instead of 21-9-53 (is correct?). The complainant has given an affidavit to that effect and I think in the absence of any counter-affidavit this affidavit should be accepted.
Again it has been held in State v. Kayam that the omission to comply with every provision in the Code of Criminal Procedure, which is mandatory in form, does not necessarily vitiate a trial, unless the provision positively prohibits a certain course of action. In other cases, it will have to be considered in each case, whether the omission or irregularity was such as to prejudice the accused. Where prejudice has been caused to the accused or may probably have been caused, the trial will be quashed; but where there has been no prejudice whatsoever to the accused because of the omission or irregularities, the trial will be held valid in view of the curative provisions of Sections 535 and 537, Criminal P. C., vide – Abdul Rahman v. Emperor AIR 1927 PC 44 (B).
Where Section 342 was not complied with inasmuch as the accused was not examined after the prosecution evidence was all over, but after all the defence witnesses were examined and no prejudice was caused to the accused it was held that there was no reason for setting aside the entire proceedings. In the case before me the accused did not examine any witness in defence and so it is clear that no prejudice was caused to the accused.
5. I am of opinion that there is no good reason for accepting this reference on the first ground.
6. So far as the charge under Section 427, I. P. C., is concerned there is no doubt that the learned Magistrate failed to give any finding on it but this will mean that he did not convict the accused under that section and so the accused will legally be deemed to have been acquitted under that section. There is thus no force in the second point also raised by the learned Sessions Judge in this case.
7. The third and the last point, however, appears to have considerable force for it has been clearly admitted by P. W. 2, Abdul Kasirn Gazi that the disputed paddy crop had been raised by the accused and not by the complainant. This witness was put a clear question by the learned Magistrate towards the end of his examination as to which of the two statements given by him in his examination in chief and cross-examination, suggesting at one place that the crop has been raised by the complainant and at the other place that it had been raised by the accused, was correct and this witness then clearly stated that the correct fact was that the crop had been raised by the accused and not by the complainant.
The learned Magistrate failed to take notice of this important admission of the complainant’s own witness which was not proper. If the crop had really been raised by the accused, they would be, in no case, guilty under Section 379, I. P. C., for removing this crop. As such the conviction of the present accused cannot be legally sustained.
8. I, therefore, accept this reference and I set aside the conviction of Suresh Karmakar, Upendra Chandra Karmakar and Surendra Chandra Sukla Baidya under Section 379, I. P. C., and also the fines which have been imposed on them and I acquit them under the aforesaid section.
9. The reference is thus accepted.
