DIBAKANTA CHATTERJEE Vs. GOUR GOPAL MUKERJEE

JUDGEMENT

(1.) The joint involved in this Rule has come before the Court recently on several occasions, and it arises upon the interpretation to be giver to Section 342, Criminal Procedure Code. The complainant ana five witnesses for the prosecution were examined-in-chief on the 7 July 1922, On the 20 July 1922 five other witnesses for the prosecution were examinee -in-chief. The accused was then examined under Section 342. On the 7 August a charge was framed. No further witnesses for the prosecution were examined-in-chief, but on that and on subsequent dates the witnesses for the prosecution were cross-examined. On the 18th September six witnesses for the defence were examined. The question is, whether or not the obligatory examination of the accused under Section 342 of the Criminal Procedure Code should have taken place after the witnesses for the prosecution bad been cross-examined.

(2.) It has been submitted to us that, in smuch as there was no examination of the accused under that section after the witnesses for the prosecution had been cross-examined and before he was called upon to enter upon his defence, the provisions of the section have not been complied with. In point of fact, the accused was examined after the witnesses for the prosecution had been examined-in-chief and before he was called on for his defence. But the contention is that the word "examined" in Section 342 includes cross-examination and that, in consequence, the provisions of the section have been contravened.

(3.) We have been referred generally to recent decisions of this Court and particularly to the judgment in Mazahar Ah V/s. Emperor 71 Ind. Cas. 662 : 27 C.W.N. 99 : 36 C.L.J. 24 Cr. L.J. 198 : (1923) A.I.R. (C) 196 : 50 C. 223 in which the learned Chief Justice referring to the words of the section said: "That must mean after the witnesses for the prosecution have been examined, and after the cross-examination and re-examination, if any, of such witnesses, for ordinarily the accused is not called on for his defence until the case for the prosecution is closed." I do not understand that by this it is necessarily meant that the word "examined" includes cross-examination and re-examination if any. It... seems to me that the decision is based upon broader grounds, for a few lines earlier in the judgment I find it stated: "In my judgment it is clearly indicated in that part of the section that the time at which the Court shall question the accused generally on the case, is, after the prosecution case is completed and before the accused person is called on for his defence."