JUDGMENT

Ba U, J - The facts of the case are these: The present respondent and two others were prosecuted before the Township Magistrate of Yinmabin under Section 324 and Section 324 read with Section 114, I.P.C., at the instance of one Ba Yin. At the conclusion of the case for the prosecution the Magistrate discharged all the accused, holding that there was no prima facie case made out against any of them; whereupon Ba Yin moved the District Magistrate of lower Chindwin to revise the order of discharge and direct a further inquiry into the case by another Magistrate. The District Magistrate, without issuing notice to the accused, as he should under Section 436, Criminal P.C., set aside the order of discharge and directed a further inquiry into the case by the Sub-divisional Magistrate of Yinmabin. The Sub-divisional Magistrate did so and found the respondent guilty under Section 324, I.P.C., and ordered him to suffer 20 lashes. The other two accused were acquitted. On appeal the learned Sessions Judge held that the failure on the part of the District Magistrate to comply with the requirements of the proviso to Section 436 rendered the whole proceeding void ab initio, and in accordance with that finding he safe aside the conviction and sentence and concluded his order as follows:

But for the reasons stated above I do not acquit the appellants.

2. If he did not acquit the respondent, the only alternative courses open to him were either to discharge the respondent or order him to be retried by a Court of competent jurisdiction or commit him for trial. The order of the learned Sessions Judge, as it now stands, amounts, in my opinion, to an order of discharge. This is, however, only a minor issue in the case. The main question for consideration in this case is whether a trial held in pursuance of an order passed by a revising authority in exercise of the power conferred by Section 435, Criminal P.C. without first complying with the requirement of the proviso thereto is bad in law and, if so, whether a conviction resulting therefrom must be sat aside. Section 436 was formerly numbered as 437, but by Act 18 of 1923 its present number was given and a proviso was added thereto. The proviso was, in my opinion, added in view of the consensus of opinion expressed by all the High Courts in India that although in point of law it was not necessary to issue notice under Section 437 (now Section 436), yet in consonance with the principle of justice notice should invariably be issued before fresh proceedings were ordered to be taken against a person who had already been discharged and, if no notice was issued, the order directing a further inquiry was liable to be set aside: see the cases of Queen-Empress v. Ajudhia (1898) 20 All. 339; In the matter of Hari Das Sanyal v. Saritulla (1898) 15 Cal. 608 (F.B.); Queen-Empress v. Dorabji Hormasji (1886) 10 Bom. 131 and Alagirisamy Naidu v. Balakrishnasami Mudaliar (1903) 26 Mad. 41. This is still, in my opinion, good law. If, however, the validity of the order is not challenged and a trial is held in pursuance thereof, resulting in a conviction, then in nay opinion different consideration will arise as to whether or not the conviction should be set aside. The learned Chief Justice of this Court sitting as a Judge of the Calcutta High Court said in the case of Emperor v. Erman Ali ,

the effect of non-compliance with the statutory rules of procedure, in my opinion, must vary according to the gravity and effect of the breach, and the test in each case is whether the proceedings have resulted in a miscarriage of justice.

3. This was quoted with approval in the case of Emperor v. Nga Po Min A.I.R. 1932 Rang. 190. Therefore, what is to consider first in a case of this nature is whether or not the failure to comply with Section 436, Criminal P.C. has resulted in a miscarriage of justice. If it has not, the conviction should not, in my opinion, be set aside. Section 436 is not mandatory is interpreted by the lea