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HIGH COURT OF NAGPUR
Findlay
SHRAWAN MAHAR – Appellant
Versus
RAJESHWAR KHANDOPANT PAGE – Respondent
Decided on : 05-01-1928
Section 256 - Criminal Procedure Code - The court found that the provisions of Section 256, Criminal P.C., were not complied with by the 2nd Class Magistrate, resulting in a miscarriage of justice, and therefore the remand for further trial was necessary.
Fact of the Case:
The application was for the revision of an order remanding a criminal case for further trial due to non-compliance with Section 256, Criminal P.C., by the 2nd Class Magistrate.
Finding of the Court:
The 1st Class Magistrate held that the irregularity in question had caused a failure of justice, and therefore correctly remanded the case for retrial.
Issues: The main issue was whether the provisions of Section 255, Criminal P.C., were merely directory and not mandatory, and whether the remand for retrial was necessary.
Ratio Decidendi: The court found that the non-compliance with Section 256, Criminal P.C., had resulted in a miscarriage of justice, and therefore the remand for retrial was necessary.
Final Decision: The court dismissed the application for revision without notice to the non-applicant.
Findlay, J C—This is an application for revision of an order passed by the Magistrate of the 1st Class, Nagpur, remanding Criminal Case No. 39 of 1927, in the Court of the 2nd Class Magistrate, Ramtek, for further trial. The basis of the order of the remand was the fact that the Magistrate had not complied with the provisions of Section 256, Criminal P.C., and the 1st Class Magistrate was of opinion that the procedure of the 2nd Class Magistrate had resulted in a miscarriage of justice.
2. All that has been urged in the present application for revision is that the provisions of Section 255, Criminal P.C., are directory and not mandatory, and that the remand of the case for a retrial was unnecessary. I find it unnecessary, in the circumstances of the case, to decide whether, in my opinion, the provisions in question should be considered as merely directory. There is considerable authority for the latter view, e.g., in Mt. Ghasiti v. The Crown, 1926 AIR(Lah) 155, as well as in various unreported cases. Obviously, however, assuming the decision in the Lahore case to be a correct exposition of the law, and assuming what has occured to have been a mere irregularity, the 1st Class Magistrate has further held that the irregularity in question has caused a failure of justice. On the facts stated by the 1st Class Magistrate I am in full agreement with the latter view, and it follows, therefore, that the case has been correctly remanded to the Court of the 2nd Class Magistrate for a retrial. I am unable, therefore, to interfere, and dismiss the application without notice to the non-applicant.
Final Result : Dismissed
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