EMPEROR Vs. HARJIVAN VALJI

JUDGEMENT

(1.) His Lordship proceeded after stating facts. Before proceeding to consider the applications on their merits, so far as they can be dealt with in revision, I will first notice two objections that have been taken to the legality of the proceedings before the Magistrates. The first of these is that the depositions, by consent of the pleaders both for the Crown and the accused, taken in one of the three cases were admitted as evidence in the other two cases. As to this the Sub-Divisional Magistrate in Appeal No. 7 before him says that the depositions were read out in each of the two other cases, and hence the provisions of the law in that respect were complied with. No doubt this procedure is not regular, but I do not think that we are constrained to hold that it constitutes an illegality which vitiates the trial of the other two cases. I know of no authority to that extent, and in Emperor v. Ghanasham [1906] 8 Bom. L.R. 538, which is a somewhat similar case, it was held that the procedure adopted was irregular and was cured by Section 537, Criminal Procedure Code. There is no prejudice to the accused when lie himself consented to this being done. Therefore, I think that this ground affords no basis for our interference.

(2.) The second objection is that the Bench of Magistrates did not comply with the imperative provisions of Section 842, Criminal Procedure Code, inasmuch as they did not examine the petitioner in any of the three cases. No doubt, if there had been an omission to examine him in accordance with the provisions of Section 342, then under the rulings of this Court that is an illegality vitiating the trial and subsequent conviction. But the Sub-Divisional Magistrate in his order in Appeal No. 8 says: I find that the appellant has given a written statement and the learned pleader for the respondent who was present at the hearing of the case states that the trying Magistrate asked the appellant accused if he had anything to say and he said that he would give a written, statement; and that the appellant's present pleader was not conducting the case then. As there is the written statement of the accused (appellant) the provision of Section 342, Criminal Procedure Code, has been complied with.

(3.) This statement that the Magistrate asked the accused what he had to say, and that he then gave his written statement, has not been contradicted by any affidavit in the present proceedings and is in accordance with probabilities. In these circumstances it seems to me that it amounts to the accused's saying that he declined to answer any question of the Court and would simply put in a written statement. As that written statement was allowed to be put in, it does not rest in the mouth of the accused to say that there has been any illegality. The provisions of Section 342, so far as they require a personal examination of the accused by the Court, contemplate an accused who is willing to answer questions put by the Court, but under that section lie has a right to say that he will not answer any question. So, here again, I do not think that there is any sufficient ground for interfering because of the alleged non-compliance of Section 342.