VARISAI ROWTHER Vs. KING-EMPEROR

JUDGEMENT

(1.) This Criminal Revision Petition has been ordered to be referred to a Full Bench by reason of a large number of similar oases pending in which decisions of Magistrates throughout the Presidency would be vitiated if the recent decision of this Court in In re Madura Muthu Vannian (1922) I.L.R., 45 Mad., 820. was correctly decided.

(2.) The facts are that the accused were charged by the police in a warrant case for receiving stolen property before the Second-class Magistrate of Paramakudi. The procedure adopted by him was the following:---Witnesses for the prosecution were examined. The accused being given the opportunity to cross-examine the witnesses when their examination was completed did not avail themselves of that opportunity. The accused were then questioned generally on the case for the purpose of enabling them to explain the circumstances appearing from the evidence against them, and they stated that they would put in a written statement. The Magistrate then, under Section 254 of the Criminal Procedure Code, being of opinion that there was ground for presuming that the accused had committed an offence which was triable as a warrant Case and which he was competent to try, framed in writing a charge against the accused under Section 411 of the Indian Penal Code. The accused pleaded not guilty and the case was adjourned. At a later date, at their request, find in exercise of their rights under Section 256, Criminal Procedure Code, the prosecution witnesses were recalled for cross-examination by the accused, and where necessary, were re-examined. Evidence was then called for the defence and the accused through their counsel addressed the Court. The accused were not further questioned generally on the case after the cross-examination and re-examination of the prosecution witnesses. It is contended that the omission to question the accused again at this stage was an illegality, being a failure to comply with Section 342 and vitiated the whole trial. The point was not taken before the Magistrate who heard the case or on appeal before the Subdivisional Magistrate of Ramnad who affirmed the conviction, but comes before us in Revision.

(3.) Section 342, Criminal Procedure Code, requires in all cases that the accused shall be questioned generally on the case in order to enable him to explain any circumstance appearing in the evidence against him, and this has to be done, in the words of the section, "after the witnesses for the prosecution have been examined and before he (the accused) is called on for his defence." That this is mandatory and not discretionary has been held in many oases and I think by all the High Courts in India, and this must be taken as established. That failure to comply with the terms of the section is an illegality vitiating the trial and not a mere irregularity which can in a proper case be excused under Section 537 of the Criminal Procedure Code has also been held in many cases, though that has not been with such unanimity. In my judgment, failure to comply with the provisions of Section 342 is an illegality and that must be considered as established in this Presidency.