JUDGMENT : K.P. Mohapatra, J. - This revision is against the order passed by the learned Additional Sessions Judge, Cutttack, upholding the order of conviction of the petitioners u/s 323 of the Indian Penal Code (I. P. C for short ) and the sentence of rigorous imprisonment of one month imposed on each of them by the learned Subdivisional Judicial Magistrate, Jaipur. 2. The prosecution case in brief is that on 23-8-1980 at midday the petitioners assaulted P. W. 4 by means of Bahungis, as a result of which, the latter sustained injuries, F. I. R. was lodged at the police station, but as no action was taken, a petition of complaint was filed by P. W. 1 on 27-8-1980. The plea of the petitioners was denial of the occurrence. The trial Court convicted and sentenced the petitioners, although, he ocquitted two other persons accused before him on the ground that the charges framed against them were not proved. On appeal, the learned Additional Sessions Judge recorded concurrent findings of facts with regard to the assault and affirmed the order of conviction and sentence. 3. Mr. S. K. Mund appearing for the petitioners contended that on 27-8-1980, when the complaint petition was filed, the learned Sub divisional Judicial Magistrate empowered to take cognisance directed another Judicial Magistrate of the same station to make an enquiry u/s 202 of the Code of Criminal Procedure ('Code' for short), because on the face of the complaint petition he did not find a prima facie case to take immediate cognisance of the offences. The report of enquiry was submitted by the Judicial Magistrate on 29.9.1980 and on the basis thereof, cognisance of the offences was taken by the learned Sub divisional Judicial Magistrate on 3-10-1980. The procedure adopted was illegal and in view of the decision of this Court reported in Omprakash Saha Vs. Manmohan Mohanty and Another, and so the entire trial was vitiated. Accordingly, the petitioners on this legal ground alone are entitled to be acquitted. Mr. D. Panda, on the other hand, contended that the aforesaid decision was rendered long after the enquiry u/s 202 of the Code was conducted by the Judicial Magistrate and the order of taking cognisance of the offences was passed. Accordingly, the petitioners on this legal ground alone are entitled to be acquitted. Mr. D. Panda, on the other hand, contended that the aforesaid decision was rendered long after the enquiry u/s 202 of the Code was conducted by the Judicial Magistrate and the order of taking cognisance of the offences was passed. Although on the basis of the decision, the enquiry u/s 202 of the Code should have been conducted by the learned Subdivisional Judicial Magistrate himself without entrusting the same to another Judicial Magistrate, yet it was an irregularity curable by Section 465 of the Code. Therefore, the order of conviction and sentence on this ground alone cannot be set aside. It is true that according to the principle laid down in Omprakash Saha Vs. Manmohan Mohanty and Another, an order u/s 202 of the Code cannot be passed entrusting a Judicial Magistrate to conduct an enquiry and such an enquiry report made by another Magistrate on the basis of an order passed by the Subdivisional Judicial Magistrate would be invalid and the accused persons cannot be summoned on the basis thereof and as such the order summoning the accused persons would be illegal and against the provisions of the Code. If an objection to the mode of taking cognisance on the basis of the facts narrated above would have been taken at the earliest instance, namely, soon after taking cognisance of the offences, undoubtedly, on the basis of the principle referred to above, the order of taking cognisance would have been quashed. But objection is now being taken after the Court of appeal has confirmed the order of conviction and sentence. According to Section 465 of the Code, the order of conviction and sentence cannot be reverred or altered by reason of any error, omission or irregularity in issuing process, unless, in the opinion of the Court, a failure of justice has in fact been occasioned thereby on consideration of the Judgments passed by both the learned Courts below, it appears that they have based their findings on good evidence to the effect that P. W. 4 was assaulted by the petitioners. As a matter of fact, the findings of the learned Courts below to the aforesaid effect was not challenged during arguments before me. As a matter of fact, the findings of the learned Courts below to the aforesaid effect was not challenged during arguments before me. Ordinarily, in a criminal revision, concurrent findings of facts cannot be disturbed and in the instant case, I do not find adequate grounds to disturb the same. The petitioners also adequately defended themselves. So on account of the irregularity pointed out above, failure of justice has not been occasioned. I am, therefore, of the view that the irregularity was cured by Section 465 of the Code and the order of conviction and sentence cannot thereby be reversed or altered. The contention is untenable. 4. Mr. S. K. Mund next contended that the learned Courts below should have applied the provisions of Section 360 of the Code. In support of his view, he relied upon a decision of this Court reported in Bipin Bihari Sahu Vs. State of Orissa. But the facts of the reported decision were quite different. In that case the accused was below 21 years of age. But in this case, petitioner Chandrakant was aged 28 years and petitioner Chakradhar was aged 38 years on 19-3-1982 when their statements u/s 313 of the Code were recorded. They were quite matured persons and had committed the offences intentionally. To a case of this nature, the provision of Section 360 cannot be extended. Therefore, the contention is not tenable. 5. Mr. S. K. Mund next urged that in a simple case of this nature, substantive sentence of imprisonment should not have been imposed It cannot be laid down as a general proposition that in a case of 323, I.P.C. substantive sentence of imprisonment cannot be imposed. The quantum of sentence is relevant to the gravity of the offence and circumstances under which it is committed. In this case, however, the parties were neighbours and on the heat of passion the offence was committed. So the ends of justice can be served if fine is imposed instead of substantive sentence and some amount of compensation is awarded to P.W.4. 6. In the result, the order of conviction of the petitioner is upheld, but the sentence is modified. Instead of the substantive imprisonment, the petitioners are sentenced to pay a fine of Rs. 300/- each, in default to undergo rigorous imprisonment for one month each. Out of the fine, if realised, a sum of Rs. 6. In the result, the order of conviction of the petitioner is upheld, but the sentence is modified. Instead of the substantive imprisonment, the petitioners are sentenced to pay a fine of Rs. 300/- each, in default to undergo rigorous imprisonment for one month each. Out of the fine, if realised, a sum of Rs. 300/- should be paid to P. W. 4 as compensation. The revision is accordingly dismissed subject to modification of sentence.