JUDGMENT 1. - This Criminal revision is directed against the order of the learned Additional Sessions Judge No. 1, Jaipur City, Jaipur, dated 30th June, 1981, whereby he quashed the order of the Judicial Magistrate No. 6, Jaipur City, dated 2nd February, 1980 and remanded the case for taking further evidence of the complainant and to try the case according to the procedure prescribed for the trial of a warrant case. 2. Brief facts leading to this case are that the complainant non-petitioner filed a complaint against the petitioners in the court of Judicial Magistrate No. 5 Jaipur City, under Sections 147, 323, 452, 427 read with Section 392 and 504 I.P.C. Learned Magistrate tried the case as a summons case and recorded the statement of the prosecution witnesses, who were also cross-examined by the defence. After closing the prosecution evidence, two witnesses were examined by the defence. At the stage of arguments in the case it was revealed that the case should have been tried as a warrant case and not as a summon case. However, no objection was raised from the side of the defence and arguments were heard for framing charge on the basis of the evidence led by the prosecution. The learned Magistrate after examining the entire prosecution evidence arrived at the conclusion that no prima facie case was found established against the accused persons as such discharged all the accused persons by his order dated 2nd February, 1980. Aggrieved against the aforesaid order the complainant went in revision and the learned Additional Sessions Judge No. I, Jaipur City, by his impugned order took the view that in accordance with section 259 Cr.P.C. it was incumbent upon the trial Court to have recorded the entire evidence afresh after 21st January, 1980 and thereafter it should have passed an appropriate order. The learned Additional Sessions Judge, thus, took the view that as the procedure contained in section 259 Cr. P.C. had not been followed as such the order of the learned Magistrate was set aside and the case was remanded for recording fresh evidence in accordance with the procedure prescribed for the trial of a warrant case. It may also be mentioned at this stage that the learned Additional Sessions Judge did not apply his mind to the merits of the order passed by the learned Magistrate. 3. Heard learned counsel for the parties. It may also be mentioned at this stage that the learned Additional Sessions Judge did not apply his mind to the merits of the order passed by the learned Magistrate. 3. Heard learned counsel for the parties. It is not in dispute that the case ought to have been tried as a warrant case and not as a summons case. Admittedly there is no grievance raised from the side of the accused petitioners for a wrong procedure adopted in the trial of the case. So far as the prosecution is concerned it has examined all the witnesses in support of its case and the same were also cross-examined from the side of the defence. There is a conflict of decision on the point whether a trial of warrant case, if conducted as a summons case, is a curable irregularity or not. I don't want to decide this controversy as in my view the objection that the procedure adopted was irregular in this case could have been raised from the side of the accused persons and not by the complainant. So far as the complainant is concerned it had an occasion to lead the entire evidence even when the case was tried as a summons case instead of a warrant case. Neither it can be argued nor it has been shown as to how the prosecution is prejudiced in any manner whatsoever if the case was tried as a summons case instead of warrant case. Thus, in my view, if in the present case no objection was raised from the side of the defence and the accused persons were prepared for taking the evidence led by the prosecution already in the case to be considered as valid for trial as a warrant case, no grievance could be raised from the side of the complainant. In these circumstances, I am clearly of the opinion that the learned Additional Sessions Judge was clearly wrong in accepting the grievance of the complainant and to remand the case merely on the ground that the case was wrongly tried as a summons case though it was a warrant case. 4. In these circumstances, I am clearly of the opinion that the learned Additional Sessions Judge was clearly wrong in accepting the grievance of the complainant and to remand the case merely on the ground that the case was wrongly tried as a summons case though it was a warrant case. 4. Ordinarily I would have remanded the case to the Additional Sessions Judge for bearing the revision on merits, but looking to the facts of this case, that the incident relates to 15th September,1975 to which more than six years have elapsed and the allegations made in the complaint are not of serious nature I considered it proper to hear the learned counsel for the parties on the merits of the order of the Magistrate dated 2nd February, 1980. 5. Learned Magistrate in his order dated 2nd February, 1980, has placed reliance on Ex. D1, a report of this very occurrence made by Hafiz Beg husband of the present complainant. There are serious inconsistencies in the facts stated in Ex. D1 and the case sought to be proved by the witnesses during trial in the present case. Learned Magistrate also pointed out that the witnesses named in Ex. D1 were not produced in evidence and in the complaint itself the presence of no other witness was shown at the time of occurrence, but at the stage of trial evidence of many other witnesses shown to be eye witnesses has been led. Learned Magistrate also pointed out inconsistencies in the statement of PW 1 Garu Nissan PW 2 Hafiz Beg and PW 3 Jawahar Lal, PW 1 Garu Nissan has given a vacillating statement regarding and injuries inflicted on her body. No injury report or medical evidence has been produced to show that the complainant party got any injury at the hands of the accused party. The complainant has impleaded 11 persons as accused in this case and it is not believable that in case 11 persons would have inflicted injuries on the complainant party then they would not have got themselves examined by any doctor. Learned Magistrate has taken all these facts into consideration and arrived at the conclusion that no prima facie case was proved against the accused persons to frame any charge against them. Learned Magistrate has taken all these facts into consideration and arrived at the conclusion that no prima facie case was proved against the accused persons to frame any charge against them. It cannot be said that the view taken by the learned Magistrate in the facts and circumstances of this case is perverse or illegal in any manner. If from the entire evidence led by the prosecution no case is made out against the accused persons, then they were bound to be discharged even if the trial of the case was not done as a warrant case. 6. In the result, I allow this revision, set aside the order of the learned Additional Sessions Judge No. 1, Jaipur City, dated 30th June, 1981, and uphold the order of the learned Magistrate dated 2nd February, 1980 discharging the accused persons.Revision Allowed. *******