SUDAMAN Vs. EMPEROR

JUDGEMENT

(1.) This case has been reported by the Sessions Judge of Ghazipur under Section 438, Criminal Procedure Code, on the ground that the proceedings of the Magistrate in convicting the accused were illegal by reason of non-compliance with Section 342, Criminal Procedure Code, The Sessions Judge has further expressed the opinion that he was not justified in interfering with the Magistrate's finding of fact but that, if he had been so justified, there were reasons for holding that the conviction was improper. The illegality in procedure complained of is this.: The case was a warrant case. The law permits the Court after the examination-in-chief of the prosecution witnesses or some of the prosecution witnesses to examine the accused. The examination of the accused at this stage is obviously from the context, an examination intended to enable the Court to decide whether it should frame a charge ( Section 253, Criminal Procedure Code). There may be cases where the Magistrate sees an easy answer to the prosecution evidence and desires that answer to be given by the accused before he discharges the accused. If the Magistrate frames a charge the accused is then given an opportunity of cross- examining the prosecution, witnesses that have been heard. The remaining witnesses, if any, for the prosecution are then examined and cross-examined and last of all the accused shall be called upon to enter upon his defence and produce the evidence ( Section 256, Criminal Procedure Code).

(2.) Sec. 342 adds something further to Section 256. It requires the Court to question the accused generally on the case just before the accused is called upon to enter upon his defence. In this case the Sessions Judge states that the Magistrate questioned the accused under Section 342 not just before he was called on for his defence but at the stage when the accused should have been questioned merely with a view to enable the Magistrate to decide if it was necessary to frame a charge. The Sessions Judge relying on a case reported in Mitarjit Singh v. Emperor A.I.R. 1922 Patna 158, though the Sessions Judge has occasioned this Court considerable trouble by referring to the wrong case, has held that this defective procedure was prejudicial to the accused because the prosecution witnesses were warned before their cross-examination of the weak points in their prosecution evidence. He has also followed this ruling in holding that the defect was an illegality which could not be excused under Section 537 Criminal Procedure Code. On the other hand, the Magistrate has cited a decision reported in In re Varisai Rowther A.I.R. 1923 Mad. 609 as taking a different view to that held by the Patna High Court. In this decision a Full Bench with one dissentient held that if the accused is examined as permitted by Section 253 he need not be examined again after the cross-examination and re-examination of the witnesses already heard, unless new witnesses are heard after the examination under Section 253. Even in this case it was held that any irregularity could be excused under Section 537, Criminal Procedure Code.

(3.) It appears to me that the intention of the law is that the accused should be examined just before he enters on to his defence and produces his witnesses, i.e., after all the prosecution witnesses have been completely done with. At the same time it seems to me clear that any irregularity in this direction will come within the purview of Section 537 and will only call for interference, if it has occasioned a failure of justice. In the present case there is no ground for holding that there was any failure of justice occasioned by reason of this irregularity.