JUDGMENT

Lumsden, J. - The facts leading up to the criminal revision are as follows : During the night of the 18th and 19th December, 1921, two mares were stolen from the house of the petitioner. The latter followed up the tracks which, according to him, led past the house of the local Sub-Inspector of Police. For reasons which need not be detailed, the petitioner came to the conclusion that the Sab-Inspector would not assist him in respect of the theft and telegraphed to the Superintendent of Police alleging that the Sub-Inspector of Police had not only refused to record the case but was engaged in friendly communication with the thieves. An enquiry was held on receipt of this telegram with the result that the Deputy Superintendent of Police reported that the allegations made by the petitioner were entirely without foundation. Thereafter the Superintendent of Police recorded an order to the affect that as there was in his opinion ample evidence that an offence had been committed under Section 182, Indian Penal Coda, he sanctioned the prosecution of the petitioner under Section 195, Criminal Procedure Code, for this offence. It was further directed that the necessary action should be taken without delay. In accordance with the terms of the order Natha Singh, the Sub-Inspector concerned, received instructions to submit an application by way of complaint and to append a calendar of the witnesess. These documents were prepared and submitted and were eventually produced before the Magistrate who, after recording the evidence, found the petitioner guilty and sentenced him to two months' rigorous imprisonment plus a fine of Rs. 500. Petitioner preferred an appeal to the Sessions Judge in whose Court various legal objections to the procedure were urged. The Sessions Judge has repelled these objections but adjourned the hearing of the appeal on the merits to enable the petitioner to move this Court on the revision side.

2. The only two points urged before me are:

(a) that as there was no complaint within the meaning of Section 4 of the Criminal Procedure Code, the Magistrate had no jurisdiction to try the case, and

(b) that as the Magistrate failed to examine the complainant under Section 200, Criminal Procedure Code, all the subsequent proceedings were vitiated.

3. The latter objection is not, in my opinion, tenable. It is based on the assumption that the use of the word, 'shall' in Section 200, Criminal Procedure Code, renders an omission to examine a complainant an illegality as distinguished from a mare irregularity. No authority, however, has been quoted to support this view, on the other hand the very decisions on which petitioner relies, 30 Cal. 923 and 2 P.R. 1912, clearly imply that such omissions amount to irregularities to which the provisions of Section 537, Criminal Procedure Code, apply. In both the cases referred to, the objector was the complainant and it is easy to understand that a complainant who is not afforded an opportunity of supporting his written complaint by an oral statement may be prejudiced. In the present case it is the accused who is setting up a grievance. This grievance was nob mentioned until the time of arguments in the Trial Court and there is a presumption therefore that it had not made itself felt prior to this late stage in the case. A somewhat analogous case is reported in 11 P.R. 1911 and it was then laid down that as the failure to comply with the provisions of Section 200, Criminal Procedure Code, had not occasioned a miscarriage of justice, the irregularity was cured by Section 537 (a) of the Criminal Procedure Code. In the present case no attempt has been made to show that the accused was prejudiced in any way and I have no hesitation in holding that the omission is only an irregularity which is covered by the section mentioned.

4. Petitioner's main contention is, however, that there was no complaint and that consequently the Magistrate had no power to take cognisance of the case. In support of t