GANESH Vs. GOPI

JUDGEMENT

(1.) THIS reference has been made by the learned Sessions Judge, Jaipur District, on the ground that the Extra Magistrate, First Class, Jaipur, did not examine the accused under sec. 342 of the Code of Criminal Procedure, as required by law, after the prosecution evidence was over, and by this omission the accused have been prejudiced. He has recommended that the conviction of the accused under sec. 447 of the Indian Penal Code be set aside, and the case be sent back to the Magistrate to proceed from the stage at which the illegality occurred.

(2.) THE parties have not appeared, I have perused the judgment of the learned Sessions Judge as well as the explanation submitted by the Magistrate. I have also gone through the proceedings of the trial court. I find from the record that no examination at all was made of the accused under sec. 342 of the Code of Criminal Procedure. It was the Magistrate's duty to question the accused generally on the case, after the witnesses for the prosecution had been examined, This the Magistrate did not do. THEy were, therefore, not able to explain the circumstances appearing in the evidence of the prosecution witnesses against them, and were consequently prejudiced. I am not unmindful of a judgment of the Supreme Court in the case of Bejoy Chandra Patra vs. State of West Bengal (1) (A. I. R. (39) 1952 S. C. 105.), in which it was held that it was not sufficient for the accused merely to show that he had not been fully examined as required by sec. 342, but he must also show that such examination had materially prejudiced him. In that case there was no total omission to comply with the provisions of sec. 342, but only some questions were put, and it was submitted on behalf of the accused that the examination was not adequate. THEir Lordships held that although it was not adequate, yet the case being simple and free from any complications, there was no prejudice to the accused. In the present case, not a single question was put to the accused after the prosecution evidence was over, and the trial Magistrate totally failed to comply with the provisions of sec. 342. THE argument of the accused, therefore, that they had been prejudiced inasmuch as they had no opportunity at all to explain the circumstances appearing against them in the prosecution evidence is not devoid of force. THE trial Magistrate himself in this explanation says that according to the view of the majority of the High Courts it was imperative upon him to examine the accused in accordance with sec. 342 of the Code of Criminal Procedure. He has said that it is only the Madras and Rangoon High Courts which have taken the view that in summons cases it is not an illegality not to comply with the provisions of sec. 342. THE Magistrate has not referred to any of these rulings of these two High Courts, but probably the reference is to the decisions in the cases of Ponnuswami Odayar and others vs. Rama-swami Thathan (2) (A. I. R. 1925 Mad. 15.) and Emperor vs. Nga La Gyi and another (3) (A. I. R. 1931 Rangoon 244.), which are cited in the commentary on the Criminal Procedure Code by V. V. Chitaley, volume second. In these cases, it was held that in summons cases it was not necessary to examine the accused under sec. 342 of the Code of Criminal Procedure, and, therefore, omission to examine him in accordance with the said section was not an illegality, although it was desirable that even in summons cases the provisions of the said section should be complied with. I agree with the majority of the High Courts which have taken the view that even in summons cases compliance with the provisions of sec. 342 (1) Cr. P. C. is necessary. Sec 342 Cr. P. C. is general, and applies to summons as well as to warrant cases. Noncompliance with the said section was, therefore, an illegality, and it has prejudiced the accused inasmuch as they had absolutely no opportunity to explain the circumstances appearing in the prosecution evidence against them.