The main legal point established in the judgment is the interpretation of the word 'trial' in the Criminal Procedure Code and the applicability of Section 117(2) to Section 350(1) proviso (a).

Wallis, C.J.

1. I agree with the opinion of Ayling and Coutts-Trotter, JJ., which I have had the advantage of reading, as to the effect of the proviso to Section 350 read with Section 117, and will only add that in my opinion trial generally means the determination of the issues arising in the particular case. As pointed out in The History of English Law by Pollock and Maitland, Vol. II, page 598, the word trial comes from the French trier, Latin tritare, and was first used of the testing or trial of challenges to jurors. Triers of challenges are still appointed when necessary in English criminal trials. Though we talk of the trial of persons what are really tried both in Civil and Criminal cases are issues. An ordinary criminal trial in England is, in the language of the common law, a trial of the general issue joined between the Crown and the accused on the latters plea of not guilty of the charge preferred against him. See Archbold Criminal Pleading, Ch. 4, Section

5. "The general issue" page 161, 25th Edn. On the other hand, the preliminary Magisterial inquiry which is of comparatively modern origin, forms no part of the trial. I think the framers of the Code had this distinction in mind when they framed the definition of Inquiry so as to exclude trial. In the present case an issue undoubtedly arises between the Crown and the accused as to whether he should be dealt with under the sections, and I see no sufficient reason why the determination of that issue should not be regarded as a trial.

Ayling, J.

2. The question referred to us is as follows: "Whether Section 350(1) proviso (a) Criminal procedure Code, applies to a care under Section 107, Criminal Procedure Code."

3. The proviso in question refers only to a " trial" while the principal clause refers to "an inquiry or a trial." The difference is significant; and points irresistibly to the conclusion that the legislature intended to distinguish between an inquiry and a trial and to direct that, while the principal clause would apply to both, the proviso should only apply to a "trial." What, then, is a " trial?" It is curious that the phrase is not defined in the Code, although it is explained in Section 4 that the term "inquiry" includes every inquiry other than a trial "conducted under this Code by a Magistrate or Court." It looks as if the framers of the Code regarded the word " trial" as of such obvious significance as to require no definition. At the same time it is noticeable that in many sections of the Code the words "inquiry" and "trial" are used in close juxtaposition and apparently intended to signify two different things. I can find nothing to support the idea that either is ever used in any general or popular sense; for instance the words "inquired into" in Section 177, which has been referred to seem to me intended to direct that not only the trial of a Sessions Case, but the preliminary inquiry under Chapter XVIII shall ordinarily take place before a Court having territorial jurisdiction. In the absence of express definition we can only look at the various sections of the Code in which the word" trial" is used, and I can find none in which it is not used in connection with proceedings in which a person stands before a Court empowered to convict him of some "offence" alleged against him. The word" trial" as used in the Criminal Procedure Code seems to presuppose the idea of an offence--a word defined in Section 4. No "offence" is involved in an enquiry under Chapter VIII of the Code; and in my opinion, inquiries under that Chapter are not trials, It follows that the proviso to Section 350(1) does not apply" suo vigore" to such proceedings.

4. There remains, however, the argument that it nevertheless applies by virtue of the provisions of the second clause of Section 117 Criminal Procedure Code, which runs thus:

Section 117(1) When an order under Section 112 has been read or explained under Section 113 to a person present in Court or when any person appears