JUDGMENT

Stuart, J. - The first point raised by the learned Counsel for the: applicants is one upon which there has been divergence of opinion in Courts, in India, It appears from the record that the witnesses for the prosecution against the applicants were examined-in-chief up to the 10th April 1922, and on that date the applicants were questioned generally oh the case by the trying Magistrate under the provision's of Section 342 before they were called on for their defence. After that the witnesses for the prosecution were cross-examined, and further, one witness, a head constable, Ram Gopal Singh, was examined for the first time for the prosecution. The evidence which he gave was to the effect that he had arrested the applicants. The point taken by the learned Counsel is that by examining this head constable after the statement of the accused had been taken, the Trying Magistrate acted contrary to the provisions of Section 342. The learned Counsel is undoubtedly right in that contention. Under the provisions of Section 342 all the prosecution witnesses should have been examined-in-chief before the final questions were put to the applicants. The applicants were not examined again after the 10th of April, The provisions of this portion of Section 342 are imperative The words are:

For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court...shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined, and before he is called on for his defence.

2. But it remains to, be considered-whether the provisions of Section 537 of the Code are not applicable. The apposite portion of that section is this:

Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under. Chapter XXVII or on appeal or revision on account of any error, omission, of irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during, trial...unless such error, omission, irregularity, want or misdirection has in fact occasioned a failure of justice.

3. It certainly appears that in many High Courts it has been held impliedly that Section 537 has no application, in these circumstances, but in this High Court it has been decided that an omission to comply With the provisions of Section 342 does not involve a setting aside of the conviction, The main authority upon the subject is to be found in the well-known decision of their Lordships of the Privy Council in Subrahmania Ayyar v. King-Emperor 25 M. 61 : 98 11 M.L.J. 233 : 3 B L.R. 540 : 28 I.A. 257 : 5 C.W.N. 866 : 2 Weir. 271 : 8 S. P.C.J. 160 (P.C.). Their Lordships did not, in that case how ever distinguish between an "error" and an "irregularity". The two, words clearly do not mean the same thing. I regard the failure to apply correctly to provisions of Section 342 as an error and not as an irregularity, and I do not understand their Lordships to have laid down that an error which has not in any way prejudiced a person convicted my not be condoned under the provisions, of Section 537, if it is not fatal to the validity of the decision, and is concerned with the proceedings rather than the mode of trial, Their Lordships in that particular case were considering neither an error, nor an omission, nor an irregularity but an illegality. In that case the trial was vitiated in its, inception. A provision pf the Criminal Procedure Code had been transgressed, and the result of the transgression was, that the Court bad actually no, jurisdiction to hear the case. The Court had only jurisdiction, to try in one case a person for three offences of the same kind committed within a period of 12 months and; it actually had, tried a person for 41 offences committed; during a period of two years. Their Lordships held that the course pursued was, plainly illegal