EMPEROR Vs. RAJU AHILAJI

JUDGEMENT

(1.) THE Only point argued before us is one of law. in the trial before the Sessions Judge, the three appellants were not questioned by the Judge. It is therefore argued on their behalf that in accordance with the decision in the case of Emperor V/s. Savalya Atma Pastya (1907) 9 Bom. L.R. 356 the conviction must be reversed and a retrial ordered, on the ground that the trial was illegal. This proposition proceeds on the assumption that the provisions of Section 342, Criminal Procedure Code, apply to the case of an accused tried before the Sessions Judge, even when ho has been questioned on the case generally by the Committing Magistrate. That is a proposition which seems to us to be open to serious doubt, but it has been asserted in the Ruling referred to and before that it had been asserted on. several occasions by Benches of this Court. We must, therefore, reverse the conviction and order a retrial unless we are prepared to refer the point to a Full Bench; This we are not prepared to do in the particular circumstances of this case, especially having regard to the fact that the appellants were not questioned at all by the Sessions Judge and had no opportunity before him and the assessors of explaining facts which appeared in evidence against them. Consequently we must set aside the conviction and sentence and direct a fresh trial of the three appellants. This is necessary because the particular Judge who tried the case previously is not now in India.