Judgement

Appeal (No. 58 of 1926) by special leave from a judgment of the High Court (August 27, 1925) confirming a conviction of the appellant under ss. 466, 109 of the Indian Penal Code by the District Magistrate at Rangoon.

By the sanction of Governor in Council a complaint was filed against the appellant and another person for an offence under s. 120 B read with ss. 466 and 109 of the Indian Penal Code. The case was tried by the District Magistrate at Rangoon. After hearing the evidence for the prosecution he formulated against the accused, in substitution for the charge under s. 120 B, two charges, the one under ss. 466 and 109, and the other under ss. 466 and 116, the latter being a new charge.

The facts of the case and the nature of these charges appear from the judgment of the Judicial Committee.

The appellant was convicted on both charges, and was sentenced on the first of them to two years rigorous imprisonment. No sentence was imposed on the second charge.

The appellant appealed to the High Court on the grounds, among others (1.) that under s. 191 of the Code of Criminal Procedure the magistrate should have informed him that he was entitled to be tried by another Court; (2.) that the provisions of s. 360, with regard to the reading of depositions, were not complied with.

The High Court confirmed the conviction on the first charge, but reduced the sentence to nine months rigorous imprisonment.

The learned judges (Maung Ba and Doyle JJ.) held with regard to the objections above stated (1.) that s. 191 did not apply, as the magistrate had proceeded under s. 190 (a); (2.) that although there had been a violation of s. 360 as to reading the depositions, it was in the circumstances an irregularity which did not vitiate the proceedings but was curable under s. 537, since there had been no failure of justice, and no objection had been taken at the trial. The Court followed Nga Hla U v. Emperor (( 1925) I. L. R. 3 R. 139.) and Saiyad Mohiuddin v. King-Emperor. (( 1925) I. L. R. 4 P. 488.)

Special leave to appeal to His Majesty in Council was granted.

1926. Nov. 23, 25. Sir John Simon K.C., K. N. Chaudhuri and Frampton for the appellant. The magistrate having framed a new charge should have informed the appellant that he had the right to be tried by another Court; he was required to do so by s. 191 of the Code of Criminal Procedure, The omission was not a mere irregularity, but vitiated the trial Emperor v. Chedi.

(I. L. R. 28 A. 212.) It is true that no sentence was imposed on the new charge, but the conviction may have led to an increased sentence on the other conviction.

Further, the provisions of s. 360 as to the reading of depositions were seriously departed from. The procedure laid down by the section is obligatory, and a departure from it is not curable under s. 537 Him Lal Ghose v. Emperor (I. L. R. 52 C. 159.) ; Dargahi v. Emperor. (I. L. R. 52 C. 499.) In Jyotish Chandra Mukerjee v. Emperor (( 1909) I. L. R. 36 C. 955.) the depositions were read, not merely handed to the witnesses to read to themselves. The object of s. 360 is to secure a uniform and equitable administration of the criminal law; it is not relevant to consider whether in this particular case injustice resulted from the serious violation of its provisions. If s. 360 is not complied with in the case of a witness he would not be chargeable with perjury. The violation of the mandatory provisions of s. 360 entitles the appellant to succeed on this appeal, on the principle followed in Subramania Iyer v. The King-Emperor. (L. R. 28 I. A. 257.) The procedure laid down in the Code cannot be varied by consent or waiver Reg. v. Cockshott ([ 1898] 1 Q. B. 582.); Hossein Buksh v. Empress (( 1880) I.

L. R. 6 C. 96.); Hendersons Criminal Code, ed. 1910, p. 1100. The appellant having obtained special leave to appeal, it is not now necessary for him to show that grave injustice has been done; it is sufficient to establish that the High Court wrongly confirmed the con