JUDGMENT - Chainani, C.J.

(1) This is an application in revision by the accused, who has been convicted under clauses (b) (c) and (f) of section 65 and clause (b) of section 66 of the Bombay Prohibition Act. The offences under section 65 of the Act, are punishable with imprisonment for a term which may extend to three years. The case was, therefore, a warrant case and not a summons case. Section 116 of the Bombay Prohibition Act, provides that in all trials for offences under this Act, the Magistrate chsll follow the procedure prescribed in the Code of Criminal Procedure for the trial of summary cases in which an appeal lies. Sub-section (1) of section 262 , Criminal Procedure Code, provides that in summary trials the procedure prescribed for summons cases shall be followed in summons cases and the procedure prescribed for warrant cases shall be followed in warrant cases, except as mentioned in the following sections in Chapter XXII. The trial Magistrates should, therefore, have follwed the procedue prescribed for warrant cases. He, however, tried the case as a summons case. It has, therefore, been urged on behalf os the accused that th trial was vitiated by the Magistrates following a wrong procedure and that consequently the conviction of the accused is illegal. On the other hand, it has been urged on behalf of the State that the irregulairy is one, which is curable under section 537, Criminal Provedure Code, unless it is shown that prejudice has been caused to the accused.

(2) We have been referred to several decisions on this point, but we do not think that it is necessary to refer to most of them. The law on the subject has been summed up by the Privy Council in Pulukuri Kotayya v. Emperor, 74 Ind App 65 at p. 75: AIR 1947 PC 67 at p. 69) in these words;

"When a trial is conducted in a manner different form that prescribed by the Code as in Subramania Iyer V. King emperor, 28 Ind App 257 (PC) the trial is bad and no question of curing an iregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code. But some irregulariy can be cured under section 53 and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code."

These observations have been quoted with approval by the Supreme Court in Narayan Rao v. State of Andhra Pradesh, 1958 SCR 283 : (S) AIR 1957 SC 737) and Chhadami Lal Jain V. State of Uttar pradesh, 1960, (1) SCR 736 at p. 747; ( AIR 1960 SC 41 at p. 46) and in Supreme Court, Payare Lal V. State of Punjab, Cri. Appeal No. 240 of 1960, D/-30-8-1961 : (AIR 1962 SC 690). The Criminal Procedure Code calssifies nthe offences triable by a Magistrate into two broad categories; summons cases and warrant cases. Chapter XX contains provisions laying down the procedure to be observed in the trial of summons cases. Chapter XXI lays down the procedure prescribed of the trial of warrant cases. The Code therefore prescribed two different procedures for he trial of the two classes of cases. The differences between the two procedurees have been considerably reduced after the amendment of theCode by the Code of Criminal Procedure (Amendment) Act (26 of 1955). But there are still substantial differences between the two procedures. Consequently, where a warrant case is tried according to the procedure prescribed for summons cases, it would be difficult to hold that the trial is conducted in the manner prescribed by the code. The case would fall within the first category mentioned in the above passage from the judgment of the Privy Council in Pulukuri Dotayyas case, 74 Ind App 65; ( AIR 1947 PC 67). The trial would therefore be bad. It is necessary to add that were the Magistrate follows substantially the provisions laid down in Chapter XXI, in regard to the trial of warrant cases but commits some irregularity in following those provisions, the irregularity would be curable under section 537, unless

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