Madras High Court
In Re: Varisai Rowther And Anr. vs Unknown
Date: 22 December, 1922
Citations: 73 Ind Cas 163, (1923) 44 MLJ 567
Author: Phillips
ORDER
1. This Criminal Revision Petition has been ordered to be referred to a Full Bench by reason of a large number of similar cases pending in which decisions of Magistrates throughout the Presidency would be vitiated if the recent decision of this Court in In re Marudamuthu Vannian (1922) 43 M.L.J. 402, was correctly decided.
2. The facts are that the accused were charged by the police in a warrant case for receiving stolen property before the Second Class Magistrate of Paramakudi. The procedure adopted by him was the following. Witnesses for the prosecution were examined. The accused being given the opportunity to cross-examine the witnesses when their examination was “completed did not avail themselves of that opportunity. The accused were then questioned generally on the case for the purpose of enabling them to” explain the circumstances appearing from the evidence against them, and they stated that they would put in a written statement. The Magistrate then, under Section 254 of the Criminal Procedure Code, being of opinion that there was ground for presuming that the accused had committed an offence which is triable as a warrant case and which he was competent to try, framed in writing a charge against the accused under Section 411 of the Indian Penal Code. The accused pleaded not guilty and the case was adjourned. At a later date, at their request, and in exercise of their rights under Section 256, Criminal Procedure Code, the prosecution witnesses were recalled for cross-examination by the accused, and where necessary, were re-examined. Evidence was then called for the defence and the accused through their counsel addressed the Court. The accused were not further questioned generally on the case after the cross-examination and re-examination of the prosecution witnesses. It is contended that the omission to question the accused again at this stage was an illegality, being a failure to comply with Section 342 and vitiated the whole trial. The point wasnot taken before the Magistrate who heard the 1. (1922) 3 M.L.J. 402. R–72 case or on appeal before the Sub-Divisional Magistrate of Ramnad who affirmed the conviction, but comes before us in Revision.
3. Section 342, Criminal Procedure Code, requires in all cases that the accused shall be questioned generally on the case in order to enable him to explain any circumstance appearing in the evidence against him, and this has to be done, in the words of the section, “after the witnesses for the prosecution have been examined and before he (the accused) is called on for his defence.” That this is mandatory and not discretionary has been held in many cases and I think by all the High Courts in India, and this must be taken as established. That failure to comply with the terms of the section is an illegality vitiating the trial and not a mere irregularity which can in a proper case be excused under Section 537 of the Criminal Procedure Code has also been held in many cases, though that has not been with such unanimity. In my judgment, failure to comply with the provisions of Section 342 is an illegality and that must be considered as established in this Presidency.
4. The question remains as to the point of time at the trial when this questioning of the accused has to take place. Under the section it must be after the prosecution witnesses have been examined and before the accused is called on for his defence. In my judgment “after the prosecution witnesses have been examined” means when the prosecution has finished calling evidence. Generally speaking, in most cases, the examination will include the cross-examination and re-examination of the prosecution witnesses, if there is any. In Sessions cases this will laways be the case as the witness remains in the witness-box until the re-examination is complete. But the position is different in proceedings before Magistrates. In a warrant case, which is all we are concerned with here, the procedure authorized by the code is that the prosecution witnesses are called and can then be cross-examined on behalf of the accused and if necessary re-examined. The prosecution witnesses called at this stage are generally the whole prosecution evidence and the prosecution is closed. The Magistrate then either dismisses the case on the ground that no case is made out or, after questioning the accused generally to enable him to explain any circumstance appearing against him from the evidence, formulates a charge under Section 254, Criminal Procedure Code. The charge is then read over and explained to the accused under Section 255 and he is asked whether he is guilty or has any defence to make. This procedure is directly in accordance with the Code, and it is difficult to see how any other is possible. It may be that the accused is not going to ask that the witnesses for the prosecution be recalled for cross-examination under Section 256, but proposes at once to call his evidence; or it may be that he is not going to call any evidence, but to rely only on his address to the Court. In either event he will have been called on for his defence and by the words of the statute, the questioning has to be after the termination of the prosecution evidence and before he is called on for his defence. It is true that, that under Section 256, although he has not availed himself of the first opportunity of cross-examining prosecution witnesses, he can ask for them to be re-called for that purpose. That does not in my judgment make that cross-examination part of the examination of the prosecution witnesses within the meaning of Section 342. Nor does re-examination generally amount to giving fresh evidence for the prosecution, but is merely explanatory of the cross-examination. If new and material matter in support of the prosecution case is elicited in cross-examination or in the re-exaimnation, it is desirable that the accused should again be questioned on the case and asked generally to explain the circumstances, and, indeed, if fresh evidence on material matters in support of the prosecution case were elicited in re-examination, it would probably be obligatory on the Court to question the accused on that. It is open to the prosecution to call fresh evidence after the formulation of the charge, and if this is done, on the termination of that evidence, the accused must be questioned generally under Section 342 after this further examination of the prosecution witnesses. This procedure provides a reasonable method of carrying out the obligation of the statute in the interests of the accused, the object being that he should have an opportunity of explaining the prosecution evidence after it is completed. That this is the proper interpretation and in fact the only workable one seems clear from an examination of Section 257, because that section provides that after the accused has entered upon his defence, the Magistrate may on the application of the accused have the prosecution witnesses repealled for examination. The questioning of the accused under Section 342 has to take place before the accused is called on for his defence; and it follows that if this cross-examination of re-called prosecution witnesses is examination of prosecution witnesses within the meaning of Section 342, it would be impossible to comply with the statute, because the questioning would then be taking place after the accused had been called on for his defence and not before as the section requires. It was probably for this reason that the word “examination” is used in Section 342, so that in warrant cases, in which under the earlier section the cross-examination of prosecution witnesses might take place after the accused had been called on for his defence, the time occupied in this cross-examination should not be included in the time before which questioning was to take place. Nor is there anything unreasonable in this because the accused has already had an opportunity of cross-examining and knows the whole force of the prosecution case, and if he chooses to exercise his right of cross-examination at a later stage, this cross-examination can be fairly treated for the purpose of this section as being rather evidence for the defence than evidence for the prosecution.
5. Direct authorities against this view are Mitarjit Singh v. The King Emperor (1921) 6 Pat. L.J. 644 : 63 I.C. 825 in which it was held that examination under Section 342 means examination-in-chief, cross-examination and re-examination, and In re Maruda Muthu Vannian (1922) 43 M.L.J. 402 to the same effect, but with neither of these for the reasons given above, do I agree.
In the result, this petition will be dismissed.
Phillips, J.
6. I agree.
Wallace, J.
7. I agree.
Devadoss, J.
8. The question referred to the Full Bench is whether a trial is “vitiated entirely, by the omission to question the accused after the taking of the prosecution evidence is completed.” The objection that the trial is vitiated by such an omission is based upon a recent decision of a Bench” of the High Court in In re Maruda Muthu Vannian (1922) 43 M.L.J. 402 which in the opinion of Krishnan, J., required further consideration.
9. The facts necessary to appreciate the objection are: the accuesd were charged by the Police with an offence under Section 411, I.P.C. After the prosecutor examined his witnesses, the accused were questioned evidently under Section 253, Criminal Procedure Code. The accused said that they would put in a written statement, but did not file any; and a charge was framed against the accused under Section 411, I.P.C. on 3-9-1921. The accused pleaded “not guilty”, and their plea was recorded on the same day. They cross-examined the prosecution witnesses on 3-10-1921 and on 21-10-1921. On 21-10-1921 they entered upon their defence and adduced their evidence. The accused were not questioned generally on the case to explain the circumstances appearing in evidence against them after the cross-examination of the prosecution witnesses was over and before they entered upon their defence. The contention Is that the accused should have been questioned generally on the case as required by the latter part of Section 342, Cr.P. Code and the omission to do so vitiated the whole trial. In In re Maruda Muthu Vannian (1922) 43 M.L.J. 402, it was held that the omission by the Magistrate to examine the accused generally on the case after the cross-examination of the prosecution witnesses was over vitiated the trial, and the conviction was on that ground illegal.
10. It may be taken as settled law that the omission to examine the accused under Section 342, Criminal Procedure Code generally on the case after the prosecution witnesses have been examined is an illegality and not an irregularity, which vitiates the whole trial. Two questions have to be settled in this case. The first is, when should the examination of the accused take place in order to comply with the mandatory provisions of Section 342, and the second, whether the examination prior to the close of. prosecution case will fulfil the requirements of Section 342. The first clause of Section 342 consists of two portions. The first is optional with the Court and the second is obligatory on the Court. The first portion runs as follows: “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, “and the second,” (The Court) shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. “The non-compliance with the first portion does not render a trial illegal or the proceedings irregular; and under the second portion it is the duty of the Court to question the accused, and that after the witnesses for the prosecution have been examined and before he is called on for his defence. Chapter XX of the Criminal Procedure Code relates to the trial of summons cases by Magistrates, Chapter XXI relates to the trial of warrant cases by Magistrates, Chapter XXII relates to summary trials, and Chapter XXIII relates to trials by High Courts and Courts of Session. Under Section 245, the Magistrate may, if he thinks fit, examine the accused, but he is not bound to do so. Under Section 253, the Magistrate may examine the accused if he thinks necessary. Section 342 is in the Chapter containing general provisions as to inquiries and trials. Under Section 209, which is in the Chapter relating to inquiry preliminary to commitment, the Magistrate may if he thinks necessary” examine the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him. “Section 342 makes the examination of the accused obligatory only in cases where the accused is called on for his defence. A Magistrate may discharge an accused without framing a charge, in which case his non-examination would not vitiate the proceedings. But where a Magistrate, or Judge in a sessions trial, finds that the prosecution has made out a case which the accused has to meet then it is incumbent upon the Magistrate or Judge to question the accused generally on the case for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him. It may be taken that the stage at which the examination is to be held is before the accused is called on for his defence. In the chapter relating to the trial of warrant cases, provision is made in Section 254 for the framing of a charge against the accused before the whole of the prosecution evidence is completed, if there is ground for presuming that the accused has committed an offence triable under the Chapter: “The difficulty in interpreting Section 342 is caused by the amendment to Sections 254 and 256, which were made in the Criminal Procedure Cade of 1898. Under the Code of 1882,” under Section 252 the Magistrate was required to “take all such evidence as may be produced in support of the prosecution,” and under Section 254, “If when this evidence and examination have been taken and made, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, he should frame a charge in writing against the accused.” Under the Code of 1882 therefore the Magistrate could not frame a charge against the accused till the evidence for the prosecution was completed. Under the Code of 1898 the Magistrate could frame a charge before the prosecution evidence is completed if he thinks there is ground for presuming the accused has committed an offence. Under Section 256 of the old Code after the charge was framed the accused had the right to cross-examine any of the witnesses for prosecution present in Court or its precincts. But under Section 256 of the Code of 1898″ the duty was cast upon the Court to ask the accused whether any of the prosecution witnesses should be recalled for cross-examination. He has, therefore, an undoubted right to have all or any of the prosecution witnesses recalled for cross-examination after the charge is framed and after he exercises such right the evidence of any of the remaining witnesses for prosecution should be taken and after cross-examination and re-examination they should be discharged. So then, if a Magistrate frames a charge against the accused before the examination of all the prosecution witnesses is over, he shall ask the accused whether he wishes to recall any or all the prosecution witnesses for cross-examination, and after such cross-examination he shall take the evidence of the remaining prosecution witnesses. It is only after that, that the accused shall be called upon to enter upon his defence and he can be said to enter upon his defence only when he begins to adduce evidence on his behalf. The contention that, if an accused person cross-examines any of the prosecution witneses under Section 256, the Magistrate is bound once more to examine the accused generally on the case seems untenable. Section 342 says” the Court shall question the accused after the witnesses for the prosecution have been examined and before he is called on for his defence.” That can only mean that the examination of the accused should take place after the prosecution has placed its whole case before the Court. If the accused chooses not to cross-examine or reserves his right to cross-examine the prosecution witness after a charge is framed, I do not think the Magistrate is bound to question him after cross-examination of the prosecution witnesses is over, provided he questions him after the prosecution has placed its whole case before him. If the Magistrate frames a charge before the whole of the prosecution evidence is placed before him, he should examine the accused under Section 342 after the remaining witnesses for the prosecution have been examined and cross-examined. The accused in a warrant case has three opportunities of cross-examining the prosecution witnesses once before the charge is framed, secondly under Section 256 and thirdly after he has entered on his defence. He can apply to the Magistrate under Section 257 to issue process for compelling the attendance of one or more prosecution witnesses for cross-examination. It cannot be the intention of the legislature to make it obligatory on the Magistrate to question the accused if he chooses to cross-examine any of the prosecution witnesses after all the defence evidence has been taken. Such cross-examination could only be to help him in his defence, and therefore it must be taken that such cross-examination is part of his defence. The words in Section 342 are, “after the witnesses for the prosecution have been examined,” and the expression cannot reasonably be interpreted to mean “after the accused has chosen to exercise his right of cross-examination at the very end of his defence.” If the prosecution applies to the Court to allow it to adduce fresh evidence after, the charge is framed and if such evidence is adduced, then it is the duty of the Court under Section 342, to question the accused generally, for, it cannot be said that the witnesses for the prosecution have been examined till the whole of the prosecution case is before it. But where the prosecution has let in all the evidence it wishes to rely on, and if the Magistrate questions the accused after taking all such evidence before framing a charge, whether the accused has cross-examined the witnessees or not, I think the mandatory provisions of Section 342 must be held to be substantially complied with. It therefore follows that any examination of the accused, which is made before all the evidence for the prosecution has been let in cannot satisfy the mandatory provisions of Section 342.
11. I shall briefly deal with the cases quoted in argument before us, The cases quoted fall under three heads:
1. Cases in which the Sessions Judge did not question the accused generally, on the case after the close of the prosecution. In those cases the High Court held that the whole trial was vitiated by the failure to question the accused to explain the circumstances appearing in evidence against him even though his statement before the Magistrate was read as part, of the prosecution evidence. They are reported in Fatu Santal v. The King Emperor (1921) 61 I.C. 705 : 6 P.L.J. 147, Raghu Bhumij v. The King Emperor (1920) 58 I.C. 49 : 5 P.L.J. 430, Emperor v. Sawalya (1907) 9 Bom. L.R. 356. In re Nainamalal Konan (1921) 14 L.W. 418 and Raja Padayachi In re 2 Weir 405.
2. The following are the cases in which a Magistrate did not question the accused generally, and the High Court held that the trial was vitiated by the omission to comply with the mandatory provisions of Section 342 Sura) Panday v. Emperor (1920) 58 I.C. 521 : 21 Cr.L.J. 793 Gulam Rasul v. The King Emperor (1921) 6 P.L.J. 174, Emperor v. Haris-chandra (1907) 10 Bom.L.R. 201, Emperor v. Gulabjan (1922) I.L.R. 46 B. 441, Emperor v. Basapa Ningapa (1915) 17 Bom.L.R. 892 and Mahomed Hossain v. Emperor (1914) I.L.R. 41 C. 743.
3. In the following cases the Magistrate examined the accused before framing the charge, but “did not question the accused generally on the case under Section 342; after cross-examination under Section 256 was over, the High Court held that the trial was vitiated by the omission to comply with the mandatory provisions of Section 342. Mitarjit Singh v. King Emperor (1921) 63 I.C. 825 : 6 P.L.J. 644. Tilak Gope v. Bhaya Ram (1921) 62 I.C. 870, Ramanath Rai v. Emperor (1921) 61 I.C. 844, Emperor v. Nga Porza (1917) 42 I.C. 176, Abbas Ali v. Emperor (1906) 4 Cr.L.J. 476 and Emperor v. Fernandez (1921) I.L.R. 45 B. 672.
12. In Raghu Bhumji v. King Emperor (1920) 58 I.C. 49 : 5 P.L.J. 430 Mr. Justice Jwala Prasad of the Patna High Court observed: “The accused adhered to the retraction of their confessions. They were not examined as to the circumstance disclosed in the prosecution evidence which the learned Sessions Judge has used against the accused and this to my mind, amounts to an omission to examine the accused under Section 342 and to prepare a proper record thereof under Section 364. So much is essential in a sessions trial where an accused is entitled to have his statement considered by assessors and the appellate Court.” This omission was held by the learned Judge to vitiate the whole trial. In 62 I.C. 870 Mr. Justice Bucknill held that “this omission to examine the accused after the case for the prosecution has been closed, or rather after all the witnesses for the prosecution have been examined, is a vital defect and cannot be cured by trying to bring into operation the provisions of Section 537 Criminal Procedure Code.” In that case, after the accused had been examined by the Magistrate, one witness at any rate for the prosecution was subsequently examined. The learned Judge qualified his first statement, “after the case for the prosecution has been closed” by adding the words, “or rather after all the prosecution witnesses have been examined.” Section 342 makes it obligatory on the Magistrate to examine the accused after the witnesses for the prosecution have been examined, and does not require the Magistrate to wait till the accused has exercised his right of cross-examination of the prosecution witness after the charge is framed. As I said above, the amendments to Sections 254 and 256 were made in 1898 without in any way altering the wording of Section 342, and a reasonable construction must be put upon the words without attributing to the legislature the fault of enacting inconsistent provisions. It is a well known canon of construction that where a reasonable construction would reconcile the provisions of an enactment, that construction ought to be adopted.
13. In 63 I.C. 825 a Bench of the Patna High Court held that “until the witnesses have been cross-examined and re-examined it cannot be said what the exact case that the accused will have to meet is, and if he is forced to disclose his defence before cross-examination it might very well be that the prosecution witnesses would be on their guard and the value of the cross-examination to a great extent destroyed. Considering both the wording of the section and its intention it appears to me clear that the court must question the accused generally on the case after the cross-examination and re-examination of the prosecution witnesses.” No doubt, this is a direct authority for the contention of the petitioner, but with great respect to the learned Judges if is not easy to conceive how an accused person would be prejudiced by disclosing his defence after the whole of the prosecution evidence has been taken and before he exercises the right to re-cross-examine them. No doubt, if before the whole of the prosecution evidence is taken, he is asked to disclose his defence the prosecution witnesses who remain to be examined may change their version in order to meet the defence of the accused. But where the prosecution has definitely put forward the whole of its case the mere fact that the prosecution witnesses are not subjected to a second cross-examination would not in any way prejudice the accused, if he discloses his defence before such cross-examination. It is open to the accused not to make any statement. The law does not cast upon him the duty of making a statement. If he feels that by disclosing his defence before the whole of the cross-examination is over his case will not suffer, he need not answer the Court questions. We are only concerned with the duty of the Court under Section 342, and not with the option of the accused. It may be said that his answers to the questions put to him by the Court even after the whole of the cross-examination is over might prejudice him. But that is left to the discretion of the accused and his legal advisers. The Court is not asked to cross-examine the accused but its duty is only to ask the accused to explain the circumstances appearing in evidence against him. I therefore consider, with all respect, that the reasoning of the learned Judges does not militate against the view that I take that the duty of the Magistrate under Section 342 is discharged if he questions the accused generally after the prosecution has placed its whole case before the Court.
14. In Shamlal Kalvoar v. Emperor (1921) 65 I.C. 610, after the examination and cross-examination of the prosecution witnesses a charge was framed against the accused. The accused were asked if they would cross-examine any of the prosecution witnesses, but they declined, and then they were called on to enter upon their defence. In a subsequent date, at the instance of the Public Prosecutor, a charge under Section 325, I.P.C. was added to one of the accuesd and the charge under Section 147, I.P.C. was verbally altered. The prosecution witnesses were then re-called and cross-examined. It was not disputed that the prosecution Evidence was closed when the accused were called on to enter upon their defence. It was contended that after the alteration of the charge under Section 147, I.P.C. and the addition of a charge under Section 325, I.P.C. the accused should have been examined and the omission to do so contravened the mandatory provisions of Section 342. Mr. Justice Jwala Prasad and Mr. Justice Adami held: “The trial does not commence de novo so that if the accused had already been called on to enter upon his defence there is no further obligation upon the Magistrate to examine the accused under Section 342 of the Code.” They also observe “The authorities of which we are so well cognisant do not at all apply to the present case.
15. In In re Marudamuthu Vannian (1922) 43 M.L.J. 403, the Magistrate in trying a warrant case examined the accused before framing the charge, but did not examine the accused generally on the case after cross-examination. The learned Judged held that the omission of the Magistrate vitiated the whole trial. If the whole of the prosecution case had been before the Magistrate before he framed the charge and if he questioned the accused generally on the case before framing the charge, I think he satisfies the mandatory provisions of Section 342. It is not necessary that the accused should make a statement by word of mouth. No doubt, Section 364 requires the Magistrate and a Court other than the High Court to record the whole of the examination “including every question put to him (accused) and every answer given by him in the language in which he is examined, or, if that is not practicable, in the language of the Court or in English, and such record shall be shown or read to him, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or to add to his answers.” Section 256 Clause (2) makes provision for the accused putting a written statement and the Magistrate filing it with the record. When the Magistrate questions the accused if he says, “I will put in a written statement,” I think it is the duty of the Magistrate to take the written statement as an answer to his questions. In other words, in such a case the accused does not wish to answer by word of mouth questions put to him, but prefers to put in a written answer.
16. In the present case after the examination of the witnesses for the prosecution, a charge was framed against the accused on 3-9-21. The accused were examined by the Magistrate on the same date. They cross-examined the prosecution witnesses on 3-10-21 and 21-10-21. The examination of the accused by the Magistrate after the prosecution had let in all their evidence, satisfied the provisions of Section 342, and therefore the trial is not vitiated by any omission to examine the accused after the cross-examination of the prosecution witnesses was over. The accused did not answer the questions put by the Magistrate Court but said they would put in a written statement, and the default, if any, is on their part. The Magistrate did what was required of him under Section 342, and if the accused did not choose to put in any written statement, they could not contend that the proceedings before the Magistrate were vitiated by an illegal omission.
17. The petition, therefore, ought to be dismissed.
18. My answer to the question referred to the Full Bench is that a trial is not vitiated by the omission to question the accused generally on the case after re-cross-examination of all the pro-secution witnesses is completed, provided the Magistrate examines the accused after the whole of the prosecution case has been placed before him.
Venkatasubba Rao, J.
19. I regret I am not of the same opinion and as I venture to take a different view I shall very briefly state my grounds.
20. The Magistrate says in his judgment: “Accused 1 and 2 who were questioned after the prosecution evidence was heard, preferred to put in a written statement, but no such testament was filed. There were grounds for presuming that the accused had committed an offence under Section 411, I.P.C., a charge was accordingly framed.” This happened on 3–9–1921. There was further cross-examination of the prosecution witnesses on 3–10–1921 and 21–10–1921. The accused was not further examined and he commenced to produce evidence in his defence on the latter date.
21. Section 342 coonsists of two parts. The first part leaves it to the option of the Magistrate to put such questions to the accused as he considers necessary. The accused may be similarly examined under Sections 209, 210, 245, 253 and 254. Where as the latter sections indicate the stage when the examination, may at the discretion of the Magistrate be made, the first part of Section 342 gives the Magistrate a wider discretion, as it permits him to put questions to the accused at any stage of the enquiry or trial.
22. Then, we come to the second part of Section 342. The pro-vision here is mandatory. It is agreed on all hands that it is the duty of the Court to make the examination of the accused at some stage of the case. The more difficult question remains: At what stage is this examination to be made? The point of time is indicated by the words” after the witnesses for the prosecution have been examined and before he (the accused) is called on for his defence.”
23. Comparing these words with the words used in the last portion of Section 256 which runs thus: “The evidence of any remaining witnesses for the prosecution shall next be taken and after cross-examination and re-examination (if any) they also shall be discharged. The accused shall then be called upon to enter upon his defence and produce his evidence….” the conclusion seems irresistible that the point of time indicated is between the close of the prosecution case and the entering by the accused upon his evidence.
24. It is said that an examination of the accused immediately upon the taking under Section 252 of the evidence in support of the prosecution, complies with the mandatory provision contained in Section 342. I am unable to accept this view. In the first place, at that stage it cannot be said that all the witnesses for the prosecution have been examined; because Section 256 contemplates further evidence likely to be forthcoming on behalf of the prosecution. In the second place, the accused is not called upon to enter upon his defence upon the taking of the evidence referred to in Section 252. Far from the accused entering on his defence at that stage, if the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence, the Magistrate is required to frame a charge against the accused. It cannot be said that the stage preceding the framing of the charge is the point of time conveyed by the words ” before the accused is called on for his defence.”
25. The words used in Section 342 are “called on for his defence.” I may notice in this connection two other sets of words. Section 255(1) runs thus: The charge shall then be read and explained to the accused and asked whether he has “any defence to make.” Section 256 contains the following sentence:
Accused shall then be called upon to enter upon his defence and produce evidence. “In my opinion the words in Section 342” called on for his defence “are used in the same sense as the words” to enter upon his defence “in Section 256. I must point out that neither side has attempted to argue that the stage when the accused should be examined under Section 342, is after the charge has been framed, read and explained and before the accused is asked under Section 255 whether he has” any defence to make. “The rival contentions before us were (1) on behalf of the Crown the examination indicated in Section 342 should be made after the taking of the evidence in support of the prosecution mentioned in Section 252 and before the framing of the charge Under Section 254; (2) on behalf of the accused the said examination should be made after the entire evidence for the prose-cution mentioned in Section 256 is given and before the accused is called upon to enter upon his defence. I am clearly of the opinion that the right construction is that contended for on behalf of the accused. If the other construction were right, it would follow that the accused would be “called on for his defence” before a charge against him is framed, that is, at a point of time which is anterior to his being asked whether he “has any defence to make.” I see no warrant for this position in the sections to which I have referred.
26. I have so far given my reasons for construing the section in the manner I have done. The learned Public Prosecutor has argued that this interpretation should be avoided, as it would lead to consequences inconvenient and unjust. I think, on the contrary, this construction alone carries out the object underlying the enactment of Section 342.
27. Under Section 342 it is only one examination that is made imperative. The other view will lead in certain events to the result that the Court will be bound to have a double examiriation of the accused; once when the evidence referred to in 8. 252 has been taken and again when further witnesses for the Crown, if any have been examined under Section 256. Moreover, the object of Section 342 can be most effectually carried out, only if the accused is examined at the very close of the case for the Crown and previous to his entering upon his defence. Not only may very material evidence be given in examination-in-chief of any further witnesses examined under Section 256 but matters unfavourable to the accused may be elicited in the cross-examination and re-examination of the witnesses already examined under Section 252.
28. It is intended that the accused should have an opportunity, in answer to a general question “What have you to say” to explain any circumstances appearing in the evidence against him.
29. This seems to me a very useful provision.
30. It must also be noted that the accused cannot give evidence on oath. Whether this is a privilege which he enjoys or a disability under which he labours, the statement, if any, that the accused makes under this section corresponds, as nearly as possible, to his evidence or oath and it is distinctly provided by Clause 3 of Section 342 that the answers given by the accused may be taken into consideration by the Court. A mere statement of the accused at this stage may conceivably lead to his acquit tal without any production of evidence on his behalf.
31. It seems to me that this view alone makes Section 342 consistent with Section 253. Otherwise the words in the latter section vesting a discretion in the Magistrate ” Of making such examination (if any) of the accused as the Magistrate thinks necessary” will be not only redundant but positively misleading because, at that point, the Magistrate, according to the other view, is under an obligation to examine the accused.
32. It has been said on behalf of the Crown that Section 257 lends some support to the view contrary to what I have taken. I am unable to agree. It is no doubt true that Section 257 gives a further opportunity to the accused to cross-examine any prosecution witnesses even after he has entered upon his defence. But this circumstance can have no bearing upon the right interpretation of the terms of Section 342. The latter section fixes a point of time not only with reference to the examination of the witnesses for the prosecution but also with reference to the accused being” called on for his defence. “The mere fact that some prosecution witnesses may be cross-examined at the instance of. the accused even after he has entered upon his defence cannot alter the interpretation which the plain words in Section 342 should receive.
33. Then turning to Section 537, I am of the opinion that the infringement of the rule enacted in Section 342 is not a mere error, omission or irregularity. Assuming for a moment that the disregard of the rule amounts only to an error, omission or irregularity, how can it ever be ascertained that such an error &c, has in fact or has not occasioned a failure of justice? We shall be left to speculate what the statement of the accused would have been or in what manner it would have influenced the mind of the trying Judge. I would for that reason assume in every instance that the non-observance has in fact occasioned a failure of justice.
34. The result is that in my view the decision in In re Maruda Muthu Vannian (1923) 43 M.L.J. 403 on both the questions is correct. I would therefore set aside the conviction of the accused and order a re-trial.