CHACKO GEORGE Vs. STATE OF KERALA

JUDGEMENT

(1.) THE accused in S. T. 1038/66 on the file of the Sub divisional Magistrate, Adoor is the revision petitioner. He has been convicted by the learned Magistrate under S. 448 and 294 (b) IPC. and sentenced to pay a fine of Rs. 100/- under the former, and another Rs. 50/- under the latter. On appeal to the sessions judge of Quilon the conviction and sentence have been confirmed by the learned Addl. Sessions Judge.

(2.) THE prosecution case is that on 4-8-66 at about 6-40 p. m the accused forced open the door of the casualty ward of 'jayan Memorial hospital' and used obscene words at PW. 1 the doctor who was then engaged in examining a patient. THE words alleged to have been used are: THE charge was denied by the accused. Learned counsel would say that there were car dealings between the accused and PW. 1 and on the in date question the accused had gone to the doctor to get his brokerage and the doctor did not like his going over there at that time and so such a false complaint was made against him. Since there was no questioning under S. 342 of the Code he did not get an opportunity to explain these facts to the court. THE learned appellate judge has made some adverse comments against the trial court for not questioning the accused at any stage of the trial. Learned counsel for the petitioner argued that the accused has been very much prejudiced on account of the fact that no opportunity was given to him to put forward his plea. Decisions are conflicting on this point. Some courts have taken the view that in summons cases it is not obligatory on the part of the court to question the accused. THE questioning is to take place before the accused is called on for his defence. THE calling on the accused for his defence, as observed by a single Bench of this court in Kunjikkoya v. Noohukunju Ibrahim Kutty 1964 klt. 109: "has a definite meaning both in sessions and warrant cases under S. 289 and 256 but when examining Chapter XX containing the provisions applying to summons cases, the expression is not used. THE accused in a summons case does not "enter on his defence" but the Magistrate is bound "to hear the accused". THE proper interpretation to be put upon S. 342 by reason of these words is that it is to apply only to those cases where under other sections of the code the accused is to be called on for his defence. " This view is seen held by a Full Bench of the Madras High court in Ponnuswamy Odayar and others v. Ramaswamy Thothan AIR. 1924 Mad. 15 and another Full Bench of the Rangoon High Court in emperor v. Nga La Gyi and another AIR. 1931 Rang. 244. But certain other High courts have taken just the contrary view. THE Allahabad High Court, for instance, has taken the consistent view that S. 342 applies both to summons as well as to warrant cases, as it is for the benefit of the accused person to enable him to explain circumstances appearing in the evidence against him. In sia Ram v. Emperor AIR. 1935 Allahabad 217 Sulaiman, C. J. , has observed: "it may well be that there is much to be said in support of either view, but the preponderance of opinion has been in favour of the view that S. 342 applies both to summons and warrant cases". A subsequent Division Bench of the same High Court in manna v. State AIR. 1954 All. 578 after reviewing the two Full Bench decisions air. 1924 Mad. 15 and AIR. 1931 Rang. 244 has come to the view that S. 342 could be made to apply to both summons and warrant cases.