EMPEROR Vs. GENU GOPAL

JUDGEMENT

(1.) In this case the three accused were tried on a charge under Section 323, Indian Penal Code, and convicted and sentenced each to pay a 6ne of Ra. 25 by the Special Magistrate, First Class, Poona. The learned Sessions Judge of Poona has made a reference to this Court recommending that the conviction and sentence passed by the Magistrate should be quashed as the trial was vitiated by failure to examine the applicants under Section 842 of the Criminal Procedure Code.

(2.) It appears that the witness, Exhibit 1, was examined on October 25, and three other witnesses on behalf of the prosecution, Exhibits 2, 3 and 4, were examined on November 1, 1928. On that day the learned Magistrate asked the accused whether they beat the complainant on Sunday September 80, 1928, at 11 A.M. The accused replied in the negative. After the statements of the accused were taken a charge under Section 823 was framed against the accused and they were asked whether they pleaded guilty to the charge. The accused having replied in the negative, the case was adjourned to November 9, 1928. On November 9, the accused were asked whether they wished to further cross-examine the witnesses and they answered in the affirmative, and the case was adjourned to November 27, 1828. On that day they were asked whether they wished to further cross- examine the witnesses. They replied in the negative and said that they were going to give a list of their witnesses. On December 4, 1928, three of the witnesses on behalf of the defence were examined and two more were examined on December 13, Before the learned Sessions Judge the Public Prosecutor admitted that if was clear from the record that after the charge was framed the Magistrate had not examined the accused under Section 342 of the Criminal Procedure Code.

(3.) Under Section 842 of the Criminal Procedure Code for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial, without previously warning the accused, put such questions to him as the Court considers necessary. This is a discretionary power which the Court may exercise at any time during the trial or inquiry even before the framing of the charge, but under the latter part of Section 342 it is obligatory on the Court for the purpose aforesaid to question the accused generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. Under Section 255 of the Criminal Procedure Code, the charge shall be read and explained to the accused and he shall be asked whether he is guilty or has any defence to make. The question put to the accused on November 1, 1928, was under the first part of Section 342 before the change was framed. After the charge was framed they were asked whether they pleaded guilty under Section 255, and having replied in the negative, at the next hearing they were asked under Section 256 of the Criminal Procedure Code whether they wished to cross-examine any, and if so, which of the prosecution witnesses. The accused said that they wished to cross-examine the witnesses on behalf of the prosecution and the case was adjourned to November 27. On November 27, they stated that they did not wish to cross-examine the prosecution witnesses. Then the stage was reached under Section 256 when the accused would be called upon to enter on his defence and produce his evidence, and "before lie is called upon to enter upon his defence" which means the same thing as "before he is called on for his defence," it is obligatory on the Court under the latter part of Section 342 to question the accused generally on the case after the witnesses for the prosecution have been examined. The stage then for calling upon the accused to explain the circumstances appearing in the evidence against him under the latter part of Section 342 would be reached where after the charge is framed the accused either declines to cross-examine the prosecution witnesses, or when he expresses a wish to cross-examine and the cross-examination and re- examination is finished, and the evidence of the remaining witnesses for the prosecution has been taken. In the present case there were no further prosecution witnesses to be examined and though the accused on November 9, 1928, stated that they wished to further cross-examine the prosecution witnesses, they declined to do so on November 27, 1928. In my opinion the stage of questioning the accused under Section 342 generally on the case was not reached till November 27, 1928, when the accused declined to further cross-examine the prosecution witnesses and before they were called on to enter upon their defence. The examination and cross-examination of the prosecution witnesses was no doubt complete on November 1, 1928, and the accused were asked the question whether they assaulted the complainant, and after that examination no further prosecution witnesses were either examined or cross-examined, and it may be said that the accused are not prejudiced by the failure of the Court to question them generally on the case under the latter part of Section 342.