EMPEROR Vs. ALIMUDDIN NASKAR

JUDGEMENT

(1.) (After discussing the evidence in detail, and disposing of the minor points, continued:) Lastly, it has been contended that there has been no adequate examination of the accused under the mandatory provisions of Section 342 of the Criminal Procedure Code. The matter is one of considerable importance, and is constantly coming up before the Court, and I desire to deal with it here.

(2.) Section 342, Sub-section (1), is divided into two parts. The opening words of the Sub- section "For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him" govern both the clauses that follow. It is with the latter clause, which is mandatory, that we are concerned here. Reading the aforesaid words into this clause, in the place of the words for the purpose aforesaid, the clause would run thus: The Court shall, for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, question him generally on the case after the witnesses for the prosecution have been examined, and before he is called on for his defence. The precise question for consideration is what is the nature of this questioning that the Legislature had in view.

(3.) Under Act XXV of 1861 and Act VIII of 1869 the examination of the accused person was discretionary with the Court. Section 202 of Act XXV of 1861, which appeared in the Chapter headed On preliminary enquiry by the Magistrate in cases triable by the Court of Session, ran thus: It shall be in the discretion of the Magistrate, from time to time, at any stage of the enquiry, to examine the accused person, and to put such questions to him as he may consider necessary. It shall be in the option of the accused "person to answer any such question". Section 373 of Act XXV of 1861, which was in the Chapter headed, Trials before the Court of Session, ran thus: "The Court, at the close of the evidence on behalf of the accused person, if any evidence is adduced on his behalf, or otherwise at the close of the case for the prosecution, may put any question to the accused person, which it may think proper. It shall be in the option of the accused person to answer such question". In Act VIII of 1869 a slight variation was made, Section 202 of the earlier Act being left untouched, and Section 373 being altered as follows: The Court, at the close of the case for the prosecution, and at the close of the evidence on behalf of the accused person (if he produces any evidence), may put any questions to the accused person which it may think proper. It shall be in the option of the accused person to answer such questions, and after such questions shall have been answered by the accused person, he or his Counsel or agent may address the "Court on the subject thereof." A new section, namely, Section 262A, was also introduced which provided that the Magistrate might examine the accused person subject to the provisions of Secs.202, 203, 204 and 205. The discretion thus vested in the Courts was often not exercised, and this led to the following instructions being issued by this Court by a letter dated 28 July 1864: "Although the Criminal P. C. does not make it imperative on a Magistrate to examine an accused person at any stage of the enquiry before committing him to stand his trial at the Court of Session, the Court thinks it necessary to impress upon all Magistrates the expediency of the general adoption of this course at some stage or other of the enquiry. In the few and exceptional cases, in which the guilt of an accused may be beyond reasonable doubt, the practice in force may be permitted without risk; but inasmuch as it is discretionary with a Magistrate to discharge or commit an accused person, according as he finds that the evidence is, in his opinion, sufficient for his conviction by the Court of Session or otherwise, it is obvious that the truth of any ordinary case will be best elicited and obscure points will be cleared away, by any explanation that the accused may wish to give, when, after hearing all the evidence against him, or at any time in the discretion of the Magistrate, he may be subjected to an examination before the Magistrate on points requiring elucidation, it being clearly explained to the accused that it is his option to answer such questions or not. The Court, however, desires to explain that in issuing these discretions, it in no way sanctions any proceedings of an inquisitional nature." The italics in the above extract are mine. It is clear upon the words used that the examination was to be on points requiring elucidation, was not to be of an inquisitorial nature, and the object aimed at was to elicit the truth by enabling the accused to explain matters, and also clearing up obscure points by means of such explanations.