TAMEZKHAN Vs. RAJJABALI MIR

JUDGEMENT

(1.) This rule has been granted on four grounds which I propose to deal with seriatim. The first ground is that the trial is vitiated by the fact that the provisions of Section 342, Criminal P.C., were not complied with in the case of the accused Tamejuddin inasmuch as he was not examined under the mandatory provision of that section at the close of the prosecution evidence. It will appear that Tamejuddin, who was represented by a pleader, was ill at the time and was not present when this examination at the close of the prosecution evidence should have taken place. The other accused persons were duly examined but Tamejuddin was not then examined not being -present. He was examined at a subsequent stage, namely at the conclusion of the defence evidence.

(2.) Mr. Chowdhury who appears in support of the Rule contends that this was not a compliance with the terms of Section 342, Criminal P.C. He contends that the provisions of the section are mandatory and that the accused persons must be examined at the conclusion of the evidence for the prosecution and that the subsequent examination at a later stage is no compliance with the terms of the section. There are a number of decisions of this Court which go to support the view which Mr. Chowdury asks us to adopt of the provisions of Section 342, Criminal P.C. They will be found in the case of Pramatha Nath Mukerjee V/s. Emperor A.I.R. 1928 Cal. 470 and in the case of Surendra Lal Shah a V/s. Isamuddi . In the last case it was hold that the examination of the accused under Section 342, Criminial P.C., must take place at the close of the prosecution case and before the accused has entered upon his defence, and his examination at a subsequent stage was no compliance with the section.

(3.) Mr. Chatterjee who has appeared for the Opposite Party has contended that the law as laid down in these cases is wrong and he would ask us to refer the question to a Full Bench as to whether a failure to comply with the provisions of Section 342, Criminal P.C., was curable under Section 537, Criminal P.C., or whether it was incurable and an illegality as has been held in the cases I have already referred to. Speaking for myself and with great respect to the learned Judges who have held otherwise, it has always bean my view that an omission to examine the accused at the stage indicated by the section is an irregularity and curable under Section 537, Criminal P.C. But Mr. Chatterjee has asked that if we do not agree with the law as laid down in the decisions referred to, we should refer the question to a Full Bench. But as we shall dispose of the case of the petitioners on another point, no reference would seem either possible or desirable.