GULABJAP Vs. EMPEROR

JUDGEMENT

(1.) The second accused was charged before the Honorary Magistrates together with three other persons with having committed an offense under Section 120 of the Bombay City Police Act. The case was transferred to the Presidency Magistrate's Court, and eventually the first three accused wore found guilty and fined. The second accused has applied to the High Court to exercise its revisional powers, on the ground that the accused was not questioned under Section 342, Criminal Procedure Code. We called for a report from the Magistrate who tried the case, and he says: It seems from the record that she (accused No. 2) was not examined by me under Section 342, Criminal Procedure Code, as she ought to have been, after the evidence for the prosecution had been taken, This, probably, was due to an oversight, as it is my invariable practice to examine an accused person under Section 342, Criminal Procedure Code, in every case in which the plea is of not guilty. I have only to add that the applicant was represented by a Pleader, and called witnesses on her behalf, so that she must have been perfectly aware of the specific charge, and the allegation she had to meet.

(2.) Now it has been decided by this Court in Fernandez V/s. Emperor 59 Ind. Cas. 129 : 22 Bom. L.R. 1040 : 45 B. 672 : 22 Cr. L.J. 17 that the omission by the Magistrate to examine the accused person as required by Section 342, Criminal Procedure Code, is an irregularity which vitiates the conviction. We are not at liberty to differ from that decision without referring the matter to a Full Bench. I do not think we should do that in this case.

(3.) The remarks that I shall make are only for the purpose of drawing the attention of Government to the provisions of Section 342, Criminal Procedure Code, which, in my opinion, taken in conjunction with the provisions of Section 364, Criminal Procedure Code, require amendment. Section 241 and the following sections lay down the procedure to be observed by Magistrates in the trial of summons cases. Under Section 244 the Magistrate has to take all such evidence as is produced in support of the prosecution if the accused does not admit the offence, and also to hear the accused and take all such evidence as he produces in his defence: and under Section 245 the Magistrate shall, if he thinks fit, examine the accused at the close of the evidence. Nothing is stated in those sections with regard to the Court questioning the accused before he enters upon his defense, so as to give him an opportunity of explaining the evidence given against him by the prosecution.