R. L. NARASIMHAM, C. J.

( 1 ) THIS is a petition in revision against the appellate judgment of the Sessions judge of Cuttack allowing Criminal Appeal No. 7-N of 1957, on his file and setting aside the conviction and sentence imposed on the opposite party by a Third Class magistrate of Tigiria and remanding the case for rehearing. Nine members of the opposite party were tried in the Court of that Magistrate for offences under sections 143/447 I. P. C. and 426 I. P. C. The learned Magistrate convicted them all under Section 143/447 I. P. C. but acquitted them of the offence under Section 426 I. P. C. On appeal before the learned Sessions Judge the main question of law that was urged was that the learned Magistrate omitted to comply with the provisions of Section 242 Cr. P. C. The learned Sessions Judge thought that such an omission was an incurable illegality. He relied on Express Dairy Ltd. v. Corporation of Calcutta AIR 1950 Cal 61 and Mastan Singh v. State AIR 1953 Pepsu 125. Hence, without examining the question of prejudice he set aside the conviction and sentence and directed retrial.

( 2 ) UNDOUBTEDLY, there is sharp conflict of judicial opinion as to whether noncompliance w