Order The petitioner in this case has been convicted for an offence under section 4 (1) (j) of the Madras Prohibition Act, by the Sub-Magistrate of Tiruppattur for having been in possession of 16 gundumanis of ganja on 26th July, 1954. He was sentenced to pay a fine of Rs.20 and the conviction and sentence were confirmed by the Sub-Divisional Magistrate, Tiruppattur. That such ganja was recovered on the date from the house of the accused cannot be disputed on the facts as spoken to by the prosecution witnesses. But the point that is taken both in the Courts below and also repeated here is that the investigating officer in this case conducted the prosecution, and such a procedure being prohibited by the provisions of section 495(4), Criminal Procedure Code, the proceedings of the Court are null and void. It is found by the first Court that the prosecution witnesses 1 and 2 were examined on 20th September, 1954 and that the Sub-Inspector who investigated the case conducted the trial on that date. Therefore the fact that this investigating officer conducted the prosecution in this case is not disputed. The only question is whether on account of the provisions of clause (4) of section 495, Criminal Procedure Code, which states that: "An officer of police shall not be permitted to conduct the prosecution if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted," the entire proceedings before the Court become null and void. There is a decision by a Bench of this Court in Sellamuthu Padayachi v. State1, where the question has been dealt with and exhaustively considered by Govinda Menon and Basheer Ahmed Sayeed, JJ. Therein the learned Judges, after referring to the various decisions of the Privy Council about the curability of the proceedings under section 537, Criminal Procedure Code, observed: "There are certain positive and negative provisions in the statute, e.g., section 342, Criminal Procedure Code, lays down that the magistrate or the Judges shall question the accused. It is a directive to the Judge to do a certain act and if for any reason that provision is violated it has been held that the proceedings are illegal. It is a directive to the Judge to do a certain act and if for any reason that provision is violated it has been held that the proceedings are illegal. Where there is an injunction in the Code prohibiting the Court from following ascertain procedure, or allowing a certain state of things to be done, as is contained in section 495 (4), Criminal Procedure Code, then the disobedience of that provision will render the entire proceedings completely void. If the Code says that such and such a thing should not be done, and when that is done, we have necessarily to say that the act is illegal and ultra aires and the proceedings null and void." These observations will apply to this case and since it is a decision of a Bench of this Court, it is binding on me. I must at the same time observe that speaking for myself, however illegal the conduct of the prosecution may be by the investigating officer, the case has to be considered by the evidence that has been tendered in Court. Can it be said that because the investigating officer examined the witnesses, their evidence which is given on oath has become null and void and is no evidence at all? Personally, I should think that their evidence tendered in Court is not in any way vitiated because the prosecution is conducted by the investigating officer. Though this is my view, I am not inclined to direct the papers to be placed before my Lord the Chief Justice for a reconsideration of the matter. Following the Bench decision, I set aside the conviction and sentence, and acquit the accused. The fine, if paid, will be refunded. R.M. ----- Conviction set aside.