EMPEROR Vs. GSFERNANDEZ

JUDGEMENT

(1.) In this application it has been urged on behalf of the applicant that after the witnesses for the prosecution were examined, the accused was not asked to explain the evidence against him as required by Section 342 of the Code of Criminal Procedure. The offence charged was punishable under Section 352, Indian Penal Code, and the procedure applicable to the case was that provided for the trial of summons cases. The trial was held by the Second Presidency Magistrate. On behalf of the Crown it is urged that the words of Section 342 are controlled by the words "if the Magistrate think fit" used in Section 245 and "if any" in Section 370, Clause (f) of the Code and that the Magistrate was not bound to question the accused as required by Section 342 in the trial of a summons-case before convicting the accused.

(2.) We called for a report from the learned Magistrate as to whether the accused was in fact questioned at the close of the prosecution case under Section 342. We have received a report on that point and the learned Magistrate has also submitted a supplementary report as to the practice followed in such cases by the Presidency Magistrates and as to the grounds upon which the practice is based.

(3.) In view of the report and the record of the case it may be taken as a fact that the accused was not asked any question after the prosecution witnesses were examined as required by Section 342 of the Code. We have, therefore, to consider whether it was obligatory upon the trial Magistrate in this case to question the accused generally and if so what is the effect of the omission upon the present case.