EMPEROR Vs. BECHU CHAUBE

JUDGEMENT

(1.) The first point raised by the learned Counsel for the applicants is one upon which there has been divergence of opinion in courts, in India, It appears from the record that the witnesses for the prosecution against the applicants were examined-in-chief up to the. 10 of April, 1922, and on that date the applicants were questioned generally on the case by the trying Magistrate, under the provisions of Section 342, before they were called on for their defence. After that, the witnesses for the prosecution were cross-examined and, further, one witness, a head constable, Ram Gopal Singh, was examined for the first time for the prosecution. The. evidence which he gave was to the effect that he had arrested the applicants. The point taken by the learned Counsel is that by examining this head constable after the statements of the accused had been taken, the trying Magistrate acted contrary to the provisions of Section 342. The learned Counsel is undoubtedly right in that contention. Under the provisions of Section 342 all the prosecution witnesses should have been examined-in-chief before the final questions, were put to the applicants. The applicants were not examined again after the 10 of April., The provisions of this portion of Section 342 are imperative. The words are: For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, a court...shall for the purpose aforesaid question him generally on the case after the witnesses for the prosecution have been examined and before: he is called on for his defence.

(2.) But it remains to be considered whether the provisions of Section 537 of the Code, are not applicable. The opposite portion of that section is this: Subject to the provisions hereinbefore contained, no finding, sentence or order, passed by a court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account of any error, omission, or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment, or other proceedings before or during trial...unless such error, omission, irregularity, want or misdirection has, in fact, occasioned a failure of justice.

(3.) It certainly appears that in many High Courts it has been hold impliedly that Section 537 has no application in these circumstances, but in this High Court it has been decided that an omission to comply with the provisions of Section 342 does not involve a setting aside of the conviction. -The main authority upon the subject is to be found in the well-known decision of their Lordships of the Privy Council in Subrahmania Ayyar V/s. King Emperor (1901) I.L.R. 25 Mad. 61 at (96-98). Their Lordships did not, in that case, however, distinguish between an "error" and an "irregularity." The two words clearly do not mean the same thing. I regard the failure to apply correctly the provisions of Section 342 as an error and not as an irregularity, and I do not understand their Lordships to have laid down that an error, which has not in any way prejudiced a person convicted, may not be condoned under the provisions of Section 537 if it is not fatal to the validity of the decision and is concerned with the proceedings rather than the mode of trial. Their Lordships in that particular case were considering neither an error, nor an omission, nor an irregularity hut an illegality. In that case the trial was vitiated in its inception. A provision of the Criminal Procedure Code had been transgressed, and the result of the transgression was that the court had actually no jurisdiction to hear the case. The court had only jurisdiction to try in one case a person for three offences of the same kind committed within a period of twelve months, and it actually had tried a person for 41 offences committed during a period of two years. Their Lordships held that the course pursued was plainly illegal, and continued: Upon the assumption that the trial was illegally conducted, it is idle to suggest that there is enough left, upon the indictment upon which a conviction might have been supported if the accused had been properly tried. The mischief sought to be avoided by the statute has been done.