Goloke Behari Takal And Ors. vs Emperor on 20 July, 1937
765, by Maclean J. and I would also quote with respectful approval the following" observations of Biawaa J. in Golok Behari v. Emperor
Where, therefore, through no fault of his a trial by jury is imposed on an accused person in disregard of the express provisions of the statute which entitle him as ol tight to a trial with the aid of assessors, it would, in ray opinion, be a manifest injustice to deprive him of a right of appeal which he would otherwise have had under the law. Such a result should be avoided by all means, unices of course this was necessitated by the constraining language of the Code. The material provisions in this respect, as already stated, are those embodied in Section 418 (1) read with Section 536, Criminal P.C.
In the application of Section 536, as it is, there is a further point to be noticed, namely, the use of the word 'only,' to which little or no attention seems to have been paid in the reported cases. All that the section says is that the trial shall not 'on that ground only' be invalid, that is, it shall not be invalid merely on the ground of the irregularity in question. In a case under Sub-section (2), if an objection is taken, it is expressly provided that this will at once take the case out of the protection of the Sub-section. In a case under Sub-section (1) it is not said that any objection will have any such effect, but it may quite be that apart from the irregularity, there is prejudice caused to the accused by reason of such irregularity. It will then be a case not of irregularity, but of irregularity and something more, and it is difficult to see how the saving provisions of Sub-section (1) can then at all apply. Where the trial ends in an acquittftl, and there is or is not an appeal by the Local Government, there will be obviously no prejudice, and the trial may stand- But where it ends in a conviction, and the accused appeals, and the accused is sought to be shut out of an appeal on facts, he will certainly have been prejudioad, and on a strict reading of S, 536 (1) the trial will be incurably bad. To render the trial valid in such a case, the right of appeal on facts would indeed have to be conceded Prejudice may arise also in another way, as it has in this case, where the Judge takes, a view more favourable to the accused than the jury but is unable to give effect to it because the trial is a trial by jury.