ORDER : The petitioners - Shanu Raghu Datkar and four others were convicted by the learned Magistrate, Bicholim, of the offences under sections 143, 447 and 379 of the Indian Penal Code and sentenced to undergo R. I. for two months and a fine of Rs. 100 and in default of payment of fine, to undergo R. I. for one month. The sentences were directed to run concurrently. They preferred an appeal against the decision of the learned Magistrate. The learned Sessions Judge agreed with the learned Magistrate that the petitioners had formed an unlawful assembly, that they trespassed into the land in possession of the complainant; and that they committed theft of the jackfruits valued at Rs. 2. The defence of the petitioners was that the land had been mortgaged by their ancestors some years back with Alfredo Botelho; that they wanted to get back the land on payment of the mortgage loan; and that they had a right to the possession of the land. This defence was not believed by the learned Sessions Judge and for good reasons. He also overruled an objection urged on behalf of the petitioners that the trial was vitiated. The petitioners were tried by the Magistrate who had power to try these offences summarily. He was succeeded by another Magistrate before he could give judgment. This Magistrate had no summary powers. He considered the substance of the evidence recorded by his predecessor and then recorded a judgment of conviction. According to the learned Sessions Judge the trial was not vitiated because of the protection of S. 537 of the Criminal Procedure Code. In his opinion, "Sec. 537 of the Criminal Procedure Code cures irregularities committed by Courts having jurisdiction to try a case. The question to be decided therefore is whether want of powers to try a case summarily under Section 260(1) of the Criminal Procedure Code, is want of jurisdiction within the meaning of Section 537 Criminal Procedure Code. My answer to the question is in the negative." In the view taken by him, the appeal was dismissed. The petitioners felt aggrieved and hence the present petition in revision under Ss. 435 and 439 of the Criminal Procedure Code. 2. Shri J. Dhond, learned counsel for the petitioners, argues that Section 537 of the Criminal Procedure Code is not attracted in this case as erroneously held by the learned Sessions Judge. The petitioners felt aggrieved and hence the present petition in revision under Ss. 435 and 439 of the Criminal Procedure Code. 2. Shri J. Dhond, learned counsel for the petitioners, argues that Section 537 of the Criminal Procedure Code is not attracted in this case as erroneously held by the learned Sessions Judge. According to him this is not a case of an irregularity but an illegality which goes to the root of the matter. It is necessary to examine the relevant provisions of the Code before considering this argument. It is not in dispute that the offences under these sections are triable summarily in view of the provisions of Section 260 of the Code. It is also not in dispute that up to the stage of the judgment the learned predecessor of the convicting Magistrate recorded the substance of the evidence. It is common ground that the convicting Magistrate had not been vested with summary powers. These powers are to be expressly conferred by the Government. Under Section 264 of the Code, in every case tried summarily by a Magistrate in which an appeal lies, such Magistrate shall record the substance of the evidence and also the particulars mentioned in Section 263 and shall, before passing any sentence, record a judgment in the case. The case tried summarily was appealable in this case. This section was substituted in place of the old section by the Code of Criminal Procedure (Amendment) Act 26 of 1955. The effect of the amendment is that the Magistrate is required to record the substance of the evidence while before the amendment, he was required to record a judgment containing the substance of the evidence and a separate record of the evidence was not necessary. That there has been compliance with this section as amended is not in dispute. It will be noticed that the emphasis is on the words "such Magistrate" in the section and this is not without significance. The words used are to be given the necessary effect intended by the legislature. The Magistrate should have the power to try the offences summarily. This is an indispensable requirement. The convicting Magistrate is obviously not "such Magistrate". A reading of the section would seem to indicate that judgment should also be written by the Magistrate who recorded the substance of the evidence and also the particulars mentioned in Section 263. The Magistrate should have the power to try the offences summarily. This is an indispensable requirement. The convicting Magistrate is obviously not "such Magistrate". A reading of the section would seem to indicate that judgment should also be written by the Magistrate who recorded the substance of the evidence and also the particulars mentioned in Section 263. A summary trial implies speedy disposal. This object can best be served by the case being heard and disposed of by the same Magistrate. In (1910) ILR 37 Cal 812 it was held by the Calcutta High Court that where a case is summarily tried by a Magistrate and before the trial is complete the case is transferred to another Magistrate having no power to try cases summarily, the latter Magistrate must commence the trial de novo. The reason for the decision is that a case cannot be tried summarily as to a part of it and in the ordinary way as to the rest of it. In Budhu Tatua v. Emperor, AIR 1928 Cal 183, the Division Bench of the Calcutta High Court held that where part of the evidence in a case is recorded by a Magistrate who has no jurisdiction and part of the evidence is recorded by a Magistrate who has jurisdiction, conviction is illegal and retrial is necessary. A similar view was expressed in In re G. G. Jeremiah, AIR 1916 Mad 589 (590). Appellant Jeremiah (a European British subject) was convicted by the District Magistrate of Bangalor who was a Justice of the Peace, of an offence under Section 8 of the Municipal By-law (3) after a summary trial under Section 260 of the Code. It was argued on his behalf that the proceedings are void under Section 530 of the Code, inasmuch as the District Magistrate was not empowered to try a European British subject summarily. This argument was accepted by the Division Bench of the Madras High Court and the conviction set aside. In Emperor v. Mahanand Kherajmal, AIR 1939 Sind 341, the Division Bench of the Judicial Commissioner's Court, Sind, dealt with a case where the Magistrate convicted and sentenced the accused of offences under Sections 4 and 5 of the Bombay Gambling Act. This argument was accepted by the Division Bench of the Madras High Court and the conviction set aside. In Emperor v. Mahanand Kherajmal, AIR 1939 Sind 341, the Division Bench of the Judicial Commissioner's Court, Sind, dealt with a case where the Magistrate convicted and sentenced the accused of offences under Sections 4 and 5 of the Bombay Gambling Act. He had no power to try summarily an offence under Section 4 of the Act as it was punishable with seven months' imprisonment and, therefore, it could not be tried summarily, because of the amendment of the Act. The learned Judges held that if any Magistrate tries a case summarily which he cannot under Section 260 do, he acts without jurisdiction, as held by the Calcutta High Court in (1902) ILR 29 Cal 409, Bishu Shaik v. Saber Mollah, and an illegality of such a nature goes to the root of the trial and accordingly cannot be cured under Section 530. In reaching this conclusion they sought the support of Section 530(q). 3. Section 350 of the Code may also be noticed. This section has three sub-sections. Subsection (1) is material for the present purpose. This section contemplates that whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in any enquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself. The general rule is that a Magistrate who has heard the evidence should decide the guilt or innocence of the accused. The sub-section is an exception to this rule. It is intended to cover cases of transfer of Magistrates. There is a conflict of view as to whether the section applies to summary trials. According to the Nagpur and Bombay High Courts it does. 'Emperor v. Durgaprasad, AIR 1940 Nag 239 (240) and Surat Borough Municipality v. Nagindas, AIR 1953 Bom 29 (31). The opposite view is expressed by the Court of the Judicial Commissioner, Sind, Emperor v. Hemandas, AIR 1936 Sind 40. Assuming for the sake of argument that this section applies to summary trials, even then it will not help the prosecution. 'Emperor v. Durgaprasad, AIR 1940 Nag 239 (240) and Surat Borough Municipality v. Nagindas, AIR 1953 Bom 29 (31). The opposite view is expressed by the Court of the Judicial Commissioner, Sind, Emperor v. Hemandas, AIR 1936 Sind 40. Assuming for the sake of argument that this section applies to summary trials, even then it will not help the prosecution. The convicting Magistrate did not have the power to try the petitioners summarily and, therefore, the sub-section would not apply. The words "another Magistrate who has and who exercises such jurisdiction" are particularly significant. By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, Charter or Commission under which the Court is constituted. (See Halsbury's Laws of England (Hailsham Edition) Vol. 8, P. 531.). Did the convicting Magistrate have the authority to decide the case by giving judgment? Could he take cognizance for want or summary powers? I think not. 4. The provisions of Sections 264 and 350 of the Code do not save the trial. Are there any other provisions which can sustain the Trial? Section 529 of the Code speaks of irregularities which do not vitiate proceedings. It does not cover summary trials. Section 530 speaks of irregularities which vitiate proceedings. This section enumerates the instances of irregularities which render proceedings void; one of the instances enumerated is mentioned in clause (q). This clause, read with the opening part of the section, states that if any Magistrate, not being empowered by law in this behalf, tries an offender summarily, his proceedings shall be void. The question of good faith will not arise as in the case envisaged under Section 529. The expression "proceedings" in this section has a wide connotation; it would include the whole bundle of actions taken or recorded by the Court from the moment of taking cognizance of the case until its disposal. A judgment would undoubtedly be covered by this section. A proceeding or a trial without judgment is like a body without a head. The expression "proceedings" in this section has a wide connotation; it would include the whole bundle of actions taken or recorded by the Court from the moment of taking cognizance of the case until its disposal. A judgment would undoubtedly be covered by this section. A proceeding or a trial without judgment is like a body without a head. It is difficult for the prosecution to get over this provision which is of a mandatory nature and the contention of the learned counsel for the petitioners that this is a case of illegality which goes to the root of the matter is not without force. That takes me to the next question whether Section 537 applies, as held by the learned Sessions Judge. This section applies to a case where an irregularity occurs in the trial which is regular. It cannot apply to a trial which is illegal. It is to be read subject to the provisions of S. 530 and other provisions. It, inter alia, provides that no sentence or error passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or an appeal or revision on account of any error, omission or irregularity in the judgment or other proceedings before or during trial, unless such error or irregularity has in fact occasioned a failure of justice. The section contemplates that the Court which passes the sentence or order must be a Court of "competent jurisdiction". Where, therefore, the Court has acted "without jurisdiction", this section will not enable a sentence or an order to be maintained, on the ground that there has been no consequent failure of justice. Let me make it clear that the section is not to be understood as permitting or authorizing the Courts to commit irregularities which do not occasion a failure of justice. It only means that where an irregularity is committed such irregularity is, in the absence of failure of justice, not a ground which can be urged in appeal or revision for getting the finding, sentence or order reversed. I may usefully refer to some decisions of the Supreme Court before concluding this matter. Payare Lal v. State of Punjab, AIR 1962 SC 690 was a case not of an irregularity but of an illegality on account of want of competency. I may usefully refer to some decisions of the Supreme Court before concluding this matter. Payare Lal v. State of Punjab, AIR 1962 SC 690 was a case not of an irregularity but of an illegality on account of want of competency. Under the Criminal Law Amendment Act, 1952, as it stood before its amendment, S. 350 of the Code could not be availed of when one Special Judge succeeded another. The successor Special Judge had no authority under the law to proceed with the trial of the case from the stage at which his predecessor left it. It was contended at the Bar that Section 537 would support the conviction recorded by the successor Special Judge. This contention was not accepted by the Supreme Court. Sarkar J., (as he then was) speaking for the Supreme Court observed:- "It is then said that this defect was a mere irregularity and the conviction of the appellant can, if sustained on the evidence, be upheld under Section 537 of the Code. In regard to this section, it was said by the Privy Council in Pulukuri Kottaya v. Emperor, 74 Ind App 65: AIR 1947 PC 67, at p. 75 (of Ind App): (at pp. 69-70 of AIR). "When a trial is conducted in a manner different from that prescribed by the Code (as in N. A. Subrahmania Iyer v. Emperor, (1901) 28 Ind App 257 (PC) the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under Section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code." It seems to us that the case falls within the first category mentioned by the Privy Council. This is not a case of irregularity but want of competency. Apart from Section 350 which, as we have said, is not applicable to the present case, the Code does not conceive of such a trial. The trial offends the cardinal principle of law earlier stated, the acceptance of which by the Code is clearly manifest from the fact that the Code embodies an exception to that principle in Section 350. Apart from Section 350 which, as we have said, is not applicable to the present case, the Code does not conceive of such a trial. The trial offends the cardinal principle of law earlier stated, the acceptance of which by the Code is clearly manifest from the fact that the Code embodies an exception to that principle in Section 350. Therefore, we think that Section 537 of the Code has no application. It cannot be called in aid to make what was incompetent, competent. There has been no proper trial of the case and there should be one." The trial in this case was conducted in a manner different from that prescribed by Sections 264 and 530(q) and, therefore, it is void, and no question of curing an irregularity would arise. The convicting Magistrate was not a Court of "competent jurisdiction" and, therefore, Section 537 would not apply apart from the fact that it is to be read subject to the provisions of Section 530 (q) which renders the trial void. It is true that undue emphasis is not to be placed on mere technicalities. Where the mandatory provisions are disregarded as in the case under consideration then Section 537 cannot be applied. In Chittaranjan Das v. State of West Bengal, AIR 1963 SC 1696 (1699), Gajendragadkar J., (as he then was), expressed himself thus on behalf of the Court :- "In this connection, it may be relevant to bear in mind that the requirements of procedure are generally intended to subserve the ends of justice, and so, undue emphasis on mere technicalities in respect of matters which are not of vital or important significance in a criminal trial, may sometimes frustrate the ends of justice. Where the provisions prescribed by the law of procedure are intended to be mandatory, the Legislature indicates its intention in that behalf clearly and contravention of such mandatory provisions may introduce a serious infirmity in the proceedings themselves; but where the provisions made by the law of procedure are not of vital importance, but are, nevertheless, intended to be observed, their breach may not necessarily vitiate the trial unless it is shown that the contravention in question has caused prejudice to the accused. This position is made clear by Sections 535 and 537 Criminal Procedure Code." There is a breach of Section 530(q) in this case. This is a mandatory provision. This position is made clear by Sections 535 and 537 Criminal Procedure Code." There is a breach of Section 530(q) in this case. This is a mandatory provision. The legislative intention is clearly expressed by the use of the words "the proceedings shall be void". In certain cases the word "shall" may mean "may" depending upon the context in which this word is used. A defect in the jurisdiction of the Court cannot be cured under Section 537. The learned Government Pleader has not been able to satisfy the Court that the trial is not void. The provisions of Sections 264 and 530 render the trial void. I am afraid S. 537 cannot save it, as wrongly held by the learned Sessions Judge. 5. The contention of learned counsel for the petitioners that the trial is bad is tenable and therefore must prevail. In the view taken, there is no other alternative but to set aside the conviction recorded by the learned Magistrate and also the sentence. This is a fit case for exercising revisional jurisdiction vested in this Court under Sections 435 and 439 of the Code. The convicting Magistrate having found the accused guilty, it is in the ends of justice that this case should be tried by a Magistrate other than the convicting Magistrate. This case is accordingly transferred to the learned Magistrate, Mapusa. He is directed to start a de novo trial and decide it according to law. 6. Counsel for the petitioners urges the desirability of taking action under the Probation of Offenders Act, 1958. This is a matter for the learned Magistrate to decide on merits in case he records a finding of conviction. He will no doubt take into consideration the facts of the case and also the value of the property alleged to have been stolen. The petition for revision is accordingly allowed. 7. Announced. Appeal allowed.