Order.- This is a reference made by the Sessions Judge, Coorg, Mercara, under section 438, Criminal Procedure Code, with a recommendation that the judgment of the Additional Munsiff and First Class Magistrate, Mercara, dated 13th March, 1972, convicting accused Nos. 1 and 2 under section 323, Indian Penal Code and sentencing them each to pay a fine of Rs. 50 or in default to undergo 15 days simple imprisonment should be quashed as being illegal and against law. Heard the arguments of the Government Pleader and the Counsel for accused No. 1. 2. The material facts briefly stated are: that accused Nos. 1 and 2 were prosecuted before the Additional Munsiff and First Class Magistrate, Mercara, for the offences punishable under section 325 read with section 34, Indian Penal Code. It was alleged by the prosecution that on 26th. July, 1970, both the accused persons picked up a quarrel with M.K. Laxmanna, P.W.2 at Kiggal village and assaulted him on his face and beat him with hands causing grievous injury. The case was registered in C.C. No. 95 of 1971 and process were issued to the accused persons.. Accused No. 1 Was brought under arrest on 4th October, 1971. Accused No. 2 being absent, the trying Magistrate passed an order on 8th October, 1971, splitting up the case against accused No. 2. It is borne by the record that a non-bailable warrant issued to accused No. 2 Was returned without execution as he was stated to have gone to Calcutta. The case was thus proceeded against accused No. 1 in C.C. No. 95 of 1971. In that case, the witnesses of the prosecution were examined and charge also had been framed against accused No. 1. Thereafter, the statement of accused No. 1 was recorded under section 342, Criminal Procedure Code, and the case was posted for the defence evidence. The case against accused No. 2 Was directed to be splitted and was registered as C.C. No. 1798 of 1971. Thereafter as accused No. 2 was secured, the charge was framed and his plea was recorded. A note is made in the order sheet, dated 9th February, 1972, by the learned Magistrate which reads: ‘evidence recorded in C.C. No. 95 of 1971. Both sides agree to read it in this case ‘. Thereafter as accused No. 2 was secured, the charge was framed and his plea was recorded. A note is made in the order sheet, dated 9th February, 1972, by the learned Magistrate which reads: ‘evidence recorded in C.C. No. 95 of 1971. Both sides agree to read it in this case ‘. Then in C.C. No. 1798 of 1971, accused No. 2 was examined under section 342, Criminal Procedure Code, and the case Was posted for defence evidence. Thereafter by a common judgment the cases namely: C.C. No. 95 of 1971 and C.C. No. 1798 of 1971 were disposed of. 3. Now it is quite obvious to any one with any practical knowledge of the mode in which a criminal trial should be conducted that the procedure adopted in these cases was a serious departure from the usual and proper course. The fact that the accused persons or their Counsel have consented to this course being adopted cannot give it a legal sanction for it is a well established principle of criminal law that a prisoner can consent to nothing. Nor can the consent of Counsel for an accused person validate a course of procedure which the law does not authorise. Therefore,, the trial in C.C. No. 1798 of 1971 has not been regular as the provisions of section 353, Criminal Procedure Code, have not been complied with. As mentioned earlier the fact that the accused or his Counsel consented to the irregularity will not give the procedure a legal sanction. The irregularity has vitiated the trial. Thus, the conviction and sentences passed by the trial Court are liable to be set aside. The learned Counsel for accused No. 1, Mr. M.R. Suvarna submitted that though the accused persons were charged for the offences under section 325 read with section 34, Indian Penal Code, they were convicted by the trying Magistrate only for the offence under section 323 read with section 34, Indian Penal Code. In these circumstances and particularly at such a distance of time, no useful purpose will be served by making an order for retrial. Taking into consideration all the facts and circumstance of the case, it cannot be said that the submission made by the learned Counsel is devoid of force. The offence is alleged to have taken place on 27th June, 1970. We are now in December, 1972. Taking into consideration all the facts and circumstance of the case, it cannot be said that the submission made by the learned Counsel is devoid of force. The offence is alleged to have taken place on 27th June, 1970. We are now in December, 1972. At this distance of time after more than two years, I think, it would not be just and proper to order retrial. Evidently, no useful purpose will be served if it is so directed. Therefore, the conviction and sentences passed against the accused persons are set aside and they are set at liberty. The reference made by the learned Sessions Judge is disposed of accordingly. 4. If the amount of fine is deposited, it will be refunded to the accused persons. S.V.S. ----- Reference accepted; Conviction and sentence set aside.