SUKHDEO PRASAD TIWARI Vs. EMPEROR

JUDGEMENT

(1.) The petitioners have been convicted under Section 352, I.P.C., and fined Rs. 15 on an allegation that they assaulted the complainant. The facts are concluded by the findings of the Courts below; but two objections are taken to the regularity of the proceedings. It is said that the accused was not examined in accordance with the requirements of Section 342, Criminal P.C. It is also sad that the Magistrate at the outset failed to comply with the requirements of Section 242, Criminal P.C., under which in a summons case when the accused appears or is brought before the Magistrate the particulars of the offence of which he is accused are to be stated to him and he is to be asked if he has any cause to show why he should not be convicted. It is said that each of these provisions of law is what is called mandatory and that non-compliance vitiates the whole trial.

(2.) The objection as to non-compliance with the provisions of Section 342 rests on a series of decisions of this Court beginning with Raghu Bhumij V/s. Emperor A.I.R.1920. Pat. 471 which was followed in Fatu Santal V/s. Emperor A.I.R.1921.Pat. 109 in which Sessions trials were held to be bad if there had been no examination of the accused. The principle was held applicable to warrant and summons cases: Gulam Rasul V/s. Emperor A.I.R.1921. Pat. 11 and in Mitarjit Singh V/s. Emperor A.I.R.1922. Pat. 158 it was held in a warrant case that it was not enough that the accused should have been examined during the course of the trial. It was essential that the examination should take place at the point at which the Code directs it to be done, that is to say, after the examination of the prosecution witnesses and before he is called upon for his defence. In all these cases the trials were held to be bad irrespective of whether the accused had been prejudiced or not. But in Mir Tilawan V/s. Emperor A.I.R.1922. Pat. 388 where at the point where the accused should have been examined they filed written statements instead, it was held that the accused had not been prejudiced, that there had been no miscarriage of justice and that there was no reason to interfere in revision.

(3.) Consistently with this last decision, in Bhagwat Singh V/s. Emperor A.I.R.1925. Pat. 378, where it was contended that it was not enough to ask the accused whether they wished to make any statement but they should have been questioned with regard to the several particulars appearing in the evidence against them, it was held that as the accused in answer to the first question put to them filed written statements and obviously did not intend to give oral answers to any questions, the Magistrate was not bound to continue asking questions. To do so would be useless formality.