S CARIAPPPA Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THIS reference by the Sessions Judge of Goorg cannot be accepted for the following reasons. The irregularity that is said to have been committed by the Magistrate consisted in his failure to examine the accused under Section 349, Criminal P. C., after a court witness was examined. THIS court witness supported the defence version but the trial Court did not accept the evidence of this witness. Apparently the Magistrate did not question the accused under Section 342, Criminal P. C., as there was nothing to be explained by the accused in the evidence of the court witness who supported the defence version. So the failure to examine the accused under Section 342, in the circumstances cannot be said to have in any way prejudiced the accused.

(2.) IN the order of reference, the learned Sessions Judge relying on the decision reported in Hooghly Chinsura Municipality v. Keshab, A. I. R. (20) 1983 Cal. 347; (34 Cr. L. J. 649) states that failure to comply with the provisions of Section 342, Criminal P. C. vitiates the whole trial and is not curable under Section 537, Criminal P. C. I am not able to agree with this opinion of the learned Sessions Judge of Coorg. IN Kotayya v. Emperor, I. L. R. (1948) Mad. 1: (A. I. R. (34) 1947 P. C. 67: 48 Cr. L. J. 533), their Lordships of the Privy Council laid down that where it was established that there had been a breach of the proviso to Section 162 of the Code, which did not result in any prejudice to the accused in the circumstances of the case the irregularity was one which could be cured under Section 637, Criminal P. C. and the trial was valid notwithstanding the breach of that section. Their Lordships observe at page 11 as follows;