The mere presence of the accused or assistance given by him or his lawyer during the enquiry under Section 202 of the Code of Criminal Procedure does not amount to illegality or irregularity, unless it turns the enquiry into a trial before a trial. Even if there is an irregularity, it would not vitiate the order unless it causes a failure of justice.

( 1 ) ON 24th of October, 1953, the petitioner Anil Kumar Saha, lodged a complaint before the , Sub-Divisional Magistrate of Lalbagh against the opposite parties, accusing them of having committed various offences. The main allegations were that when the opposite party No. 1, Pranada Chakrabarty, went to the complainant's father's house on 23rd of October, 1953, he demanded from his father, Bistu Pada Saha, the original Ekrarnama which one Samsher had executed in his favour; but as Anil Kumar Saha, on being asked by his father to make a copy of the same for being made over to the Sub-Inspector, went into an inner compartment, the Sub-Inspector along with two constables trespassed into the inner compartment, demanded the original Ekrarnama and while two constables -- whose names do not appear to have been mentioned in the petition of complaint, though they have been mentioned in the petition here -- held up the petitioner, the Sub-Inspector, opposite party No. 1, threatened him with a revolver. The allegation against the other accused persons appears to have been mainly of trespass into Bistu Pada's house. Alter taking cognisance of the petition of complaint, the Sub-Divisional Magistrate examined the complain ant, Anil Kumar Saha, on solemn affirmation and then sent it for enquiry to the Deputy Superintendent of Police (A ). After the Deputy Superintendent of Police made his report, a Naraji petition was filed and then the Sub-Divisional Magistrate sent the matter to Sri A. C. Chatterjee, a Magistrate, for a judicial enquiry and report. The Magistrate examined a large number of witnesses produced by the complainant and also examined two persons -- the Deputy Superintendent of Police who held the previous enquiry and the Court Sub-Inspector of Police -- as Court witnesses. He stated in his report his conclusion that no prima facie case had been made out against the accused. The Sub-Divisional Magistrate considered the report and recorded the following order :"the enquiring Magistrate has examined 20 witnesses on solemn affirmation produced by the complainant and also 2 Court witnesses. Having gone into the records of deposition of the witnesses and the report of the enquiring Magistrate, I find that no prima facie case has been made. out against the accused persons, namely S. i. Pranada Chakravarty and others. I, therefore, dismiss the complaint under Section 203, Cr. P. C. "

( 2 ) IT 'is this order of dismissal under Section 203 of the Code of Criminal Procedure tnat Anil Kumar Saha now challenges as made illegally and improperly. The only ground urged before us in support of this submission, that the order of dismissal was illegal and improper, is the first ground mentioned in the application for revision in this Court. It is in these words"for that the learned Magistrates ought not to have allowed the accused to be represented before them before the issue of processes and to make submissions before them. " I am unable to find anything in the record from which it can be said that the accused was represented before the Sub-Divisional Magistrate. What appears, however, is that when the enquiry was proceeding before Sri A. C. Chatterjee a lawyer was present in his Court, on behalf of the accused and that the Magistrate put certain questions to him and, on the basis of what the lawyer said, he put certain questions to the witnesses. This seems to me to be a fair conclusion from what has been recorded by Sri A. C. Chatterjee himself on an application that was filed before him on 15th of February, 1954. In the application that was filed by Anil Kumar Saha on that date, it was alleged that after the examination of prosecution witness No. 1. "the Court was pleased to ask certain questions to the witness" and tnat "just after that the Court was pleased to ask Sri N, K. Bhattacharjee, Advocate, who was present in Court, 'whether he has any explanation to suggest?' To this the learned Advocate suggested some questio