A Magistrate's failure to comply with Section 242 of the CrPC does not necessarily vitiate the entire trial if the accused is not materially prejudiced in his defense.

This reference is by the learned Sessions Judge, U.A.D. at Jorhat recommending quashing of an order of conviction under Section 323, Indian Penal Code passed by the learned Judicial Magistrate, First Class, Colaghat.

2. The facts briefly are that on 12-6-1969 the complainant went to the accused, who was a Clerk in the Post Office, in connection with some entries in the pass book. There some altercation took place and the complainant, who happens to be President of the Goan Panchayat, felt nettled and humiliated by the conduct of the accused who wanted him to clear out of the office by abusing him. On the next day when he was at a certain place near the Badulipara petrol pump the accused assaulted him in presence of witnesses. He, therefore, brought a complaint before the Magistrate on 27-6-1969 and the Magistrate after making a preliminary enquiry under Section 202, Criminal P.C. summoned the accused under Section 323, Indian Penal Code. In course of the hearing 5 prosecution witnesses were examined under Section 342, Criminal P.C. at the close of the prosecution and a defence witness was also examined. The accused denied having assaulted the complainant. The defence evidence was rejected by the learned Magistrate and on the evidence of the prosecution witnesses, which was believed the learned Magistrate convicted the accused. The accused then went in revision before the learned Sessions Judge, who has recommended by this reference to set aside the conviction and sentence.

3. The only ground which the learned Sessions Judge has given and which is pressed into service by Mr. Choudhuri appearing on behalf of the accused, is that on the date the accused entered appearance in answer to the summons, the allegations of the complainant were not put by the Magistrate to the accused under Section 242, Criminal P.C. Mr. Choudhuri, therefore, submits that there is a clear violation of Section 242, Criminal P.C. which has vitiated the entire trial. Mr. Choudhuri, also sub-mits that there is no adequate compliance with the provisions of Section 342, Criminal P.C. After the amendment of the Criminal P.C. in 1955, two new sub-sections have been added to Section 204 of thee Code of Criminal Procedure. We are concerned only with Section 204 (1-B) which may be quoted -

"204 (1-B) - In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint."

Mr. Choudhuri has very fairly admitted that the accused has been served with a copy of the complaint along with the summons. When, therefor, the accused entered appearance in answer to this summons, he had a fair idea of the allegations made against him on thee basis of which the summons was issued under Section 204, Criminal P.C. for an offence under Section 323, Indian Penal Code. The accused also had not taken this objection immediately at the close of the prosecution when he was examined under Section 342, Cri.P.C. or even at the earlier stage when the prosecution evidence was recorded. We are therefore, required to consider whether in this case the accused can be said to have been materially prejudiced in his defence for not stating the substance of the accusation to him on the date of he first appeared before the Magistrate in obedience to the summons. This leads us to consider Section 537 of the Code of Criminal Procedure Under that section, no finding, sentence or order passed by a competent Court of jurisdiction shall be reversed or altered on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation order, judgment or other proceedings before or during trail or in any inquiry or other proceedings under this Code. It is true that this is subject to the provisions hereinbefore contained which include Section 242, Criminal P.C. Even so, the order will not be set aside in view of this provision under Section 537, Criminal P.C. "unless such error, omission