Cuming, J.The Rule which was granted by my learned brothers Rankin and Mukerji, JJ., was argued before us on four grounds:

(1) That the provisions of Section 242 were not complied with.

(2) That no charge was drawn up and so accused was prejudiced in his defence as the case was treated as a warrant case.

(3) The provisions of Section 360 were hot complied with.

(4) An order u/s 522 was passed without notice to accused.

2. I propose to deal first of all with the first ground. The first point to be decided is what was the procedure followed by the Magistrate. Did he treat the case as a summons case or a warrant case. This is not easy to determine-Admittedly the Magistrate did not apply the provisions of Section 242 and so it may be argued he treated the case as a warrant case.

3. But he also drew up no formal charge from which it might be inferred that he dealt with the case as a summons case. An examination of the record, however, would show that the two sections under which summons was issued against the accused are summons cases and from this. I think we must hold that the case was treated as a summons case. That being so, the provisions applicable to a summons case would apply. These will be found in Chap. 20 of the Code of Criminal Procedure. Section 242, which is one of the sections contained in the chapter, provides that

when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him and he shall be asked if he has any cause to show why he should not be convicted; but it shall not be necessary to frame a formal charge.

4. Admittedly this was not done and the first question to be determined is whether this omission is an illegality or merely an irregularity curable by Section 537. In. the well-known case of Subhramania Aiyar v. King-Emperor [1901] 25 Mad. 61, the Privy Council held that the disobedience to an express provision as to a made of trial cannot be regarded as a mere irregularity. Such a disregard is obviously then an illegality.

5. The question then to be decided is whether the omission to state to the accused the particulars of the offence with which he is charged is an omission to comply with an express provision of the Code as to the mode of trial. It seems to me that it is. That being so, the whole trial is vitiated. The finding and sentence must therefore be set aside and the accused persons be ordered to be re-tried. The order u/s 522, Criminal P.C., must also be set aside. The fine, it paid, will be refunded.

Gregory, J.

6. I agree that the omission to comply with the provisions of Section 242 is more than a mare irregularity in procedure. The first step in a summons case is to take the plea of the accused which has to be carefully recorded. The Magistrate then decides whether he will proceed u/s 243 or Section 244. Section 243 empowers the Magistrate to convict on an admission, while Section 244 provides that if the offence is not admitted, the evidence for the prosecution shall be taken. It is apparent, then, that; as the plea of the accused cannot be taken unless (under the provisions of Section 242) the particulars of the offence are first stated to him and he is asked why he should not be convicted, the procedure under that section, which is laid down in express terms, is a material and inseparable part of the procedure in the trial of a summons case.

7. I agree that the Rule must be made absolute.