The court emphasized the duty of the High Court to ensure obedience to the law of procedure by the subordinate courts and to prevent a gross miscarriage of justice.

( 1 ) THIS is a reference under Section 438 of the Criminal Procedure Code made by the learned district Magistrate of Gulbarga in the following circumstances:

( 2 ) ON 12-8-1956 one Abdul Wahed on behalf of one Rasul Bi made a written complaint to the yadgir police charging the respondents before me with having illegally broken into her house on 5-8-1956 by breaking the locks and with having removed certain properties kept therein. It was also complained that the accused continued in illegal occupation of the house. This information was registered by the police under Sections 457 and 380 of the Indian Penal Code. After investigation, however, they filed a charge sheet before the Munsiff-Magistrate of Yadgir only in respect on an offence under Section 457 I. P. C. This was on 21-9-1956. Thereafter the case underwent a series of adjournments as one or other of the parties was absent and one of the accused frequently reported illness. On 19-3-1957 the accused filed a written statement setting out various reasons why the prosecution was misconceived and praying that the case may be dismissed and the accused discharged. This statement discloses that in respect of the house there was pending civil litigation between the parties who are closely related to each other besides some other proceedings under Section 145 of the Criminal Procedure Code. Though this statement was filed, it appears from the order sheet that only the 1st accused was present and the 2nd accused had sent a telegram to the court stating that he had missed his train and praying for an adjournment. The adjournment was granted and after two such adjournments the Magistrate heard full arguments on 23-3-1957 -- Ultimately on 3-4-1957 he framed a charge against both the accused under Section 456 of the Indian Penal Code. Both of them pleaded not guilty to the charge and the Magistrate directed issue of summonses to P. Ws. 2 to 6.

( 3 ) SOMETIME thereafter there appears to have been a change of Magistrate at Yadgir. The new magistrate ultimately came to pass an order on 29-7-1957, which is the subject-matter of this reference. In that order the learned Magistrate observes that his predecessor does not appear to have heard the parties regarding their application on 19-3-1957 to which I have already made a reference. He further observes:

"by the perusal of the whole file I could not find how it was held or presumed that the offence of house-breaking was committed in the night except that there is a letter from the police".

After referring to the civil litigation between the parties the learned Magistrate states that the parties should have been left to have their rights settled in a civil court, he concludes by stating: "hence the case is dismissed under Section 253 Cr. P. C. and the accused are discharged. "

( 4 ) THEREUPON the State filed a revision petition before the learned District Magistrate of gulbarga. The learned District Magistrate observes that the Munsiff-Magistrate at Yadgir who passed the order dated 29-7-1957 has acted in total disregard of the provisions of the Code of criminal Procedure. For one thing it was clear that the case was a warrant case and had been instituted on a police report. Hence the Magistrate should have followed the procedure prescribed by Section 251-A of the code and was wrong in having discharged the accused under Section 253. Secondly his predecessor having framed a charge and also recorded the pica of the accused in answer to that charge the case had proceeded beyond the stage at which Sub-section (2) of Section 251-A could operate. It was incumbent, therefore, upon the Magistrate to have proceeded to record evidence and conclude the case either by convicting or acquitting the accused on the basis of the evidence recorded. What is more, by his order dated 29-7-1957 the learned Magistrate has virtually reviewed the order of his predecessor framing the charge against the accused. This he had no right to do.

( 5 ) THERE can be no do

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