Mullick, J.:— In my opinion, the omission on the part of a Sessions Judge to examine the accused under Section 342 of the Cr PC, before calling on him for his defence is neither illegal nor irregular. On the contrary S. 289 expressly states that such examination is discretionary. If that is not so, then I think it must follow that S. 289 contemplates that in every summons case there shall be at least two examinations of the accused, that is to say, one at the discretion of the presiding officer, before the accused is asked whether he means to adduce evidence, and another, which is compulsory, immediately after he has elected to adduce evidence or when he has declined to adduce evidence immediately after the Public Prosecutor has addressed the Court; and if the provisions of S. 342 are mandatory, it also follows that even though a Court has fully examined the accused at the close of the case for the prosecution, he is bound, at the risk of the whole trial being vitiated, to examine him again the next moment, when nothing has been added to the record except the intimation that he will produce defence evidence. That surely could not have been the intention of the legislature, nor does the language itself of S. 289 require such a construction. The truth is that S. 342 is an enabling section. It expressly states a general provision applicable to all the trials. It shows this in the first line. It is directory bub not mandatory, and it is subject to the earlier provisions relating to the trial of summons cases, warrant and Sessions cases and to enquiries of a judicial character.

2. I have not been shown any case, which has decided that an omission to examine the accused in a summons case vitiates the trial, but if S. 342 is mandatory, then I fail to see why there should be any exception in regard to summons cases. If it is argued that in a summons case the accused is never called on for his defence, the reply seems to be that there is no virtue in these particular words and the accused in a summons case is called on for his defence after the prosecution is closed just as much as an accused in any other case. It has teen held however in regard to warrant cases that the omission to examine the accused is fatal to the trial. It is not necessary for me here to discuss the correctness of that view but, in my opinion, so far as this Court is concerned, the matter may possibly require further consideration. The true view, it seems to me, is that the Court shall not convict a man without giving him an opportunity of explaining his case, but if the Court has already before it, either in the shape of a written statement as provided for in S. 256 and in proceedings under Chs. 8 and 10 or in the submissions made by the accused's counsel, a complete and satisfactory statement of the defence of the accused, I fail to see for what purpose an oral examination is necessary. In general an ignorant accused, who is represented by counsel, is well advised if he declines to give any answer to questions under S. 342 other than that his counsel will make his submissions or that he will file a written statement. A reply of this kind adds nothing to the case and failure to give the accused an opportunity of making such a reply cannot surely be a reason for condemning the whole proceeding. Indeed, the earlier decisions in the High Court of Calcutta have gone so far as to rule that while it is not competent to the Court to refuse to allow the accused to make a statement, Abdul Guffoor, In re(1), a trial is not had even when there was on the record neither a statement by the accused, nor anything to show the nature of the defence: Gopal Hajjam, In re(2). In the latter case, it was held that, as there had been no miscarriage of justice, the conviction could not be set aside.

3. Whatever may be said of summons and warrant cases, I do not think there can be the least doubt that, as regards Sessions cases S. 342 was never intended to be mandatory. Under S. 287 the accused's statement before the committing Magistrate must be read out and put in evidence and therefore S. 289 enacts that no further examination is obligatory. Khudiram Bose v. Emperor(3) is clear authority for this view. On the other hand, I have found no case, which has gone so far as to hold that the provisions of S. 342 are mandatory and that failure to comply with them vitiates the trial. In Emperor v. Ansuiya(4) a single-Judge of the Allahabad High Court expressed the opinion that Section 342 of the Cr PC, was imperative in a Sessions trial but the Court, nevertheless, condoned its violation and upheld the conviction.

4. In Emperor v. Raju Ahilaji(5) a Division Bench of the Bombay High Court expressed serious doubts as to whether S. 342 applied to a Sessions trial but following an earlier case of that Court: Emperor v. Savalya Atma Pastya(6), and in view of the special circumstances of the case before them, they ordered a retrial.

5. In Queen-Empress v. Viran(7) one of the learned Judges expressed the opinion that when a confession is retracted, the accused should be questioned under Sections 287 and 289 of the Cr PC, read with S. 342 as to the circumstances-under which the confession was taken. That case however does not lay down that an examination under S. 342 is imperative after the statement under S. 287 has been put in evidence. Their Lordships merely repeated the settled proposition that the accused must be given a chance of letting the Court know what his case is. On the other hand Mr. Mayne in his Criminal law, p. 934 (1896 edition), cites Gandi Tataiya, In the matter of (8) and observes that it has-been held that no such examination should take place, if the prisoner has placed himself absolutely in the hands of his pleader. He expresses the opinion that probably the rule is not inflexible and that a good deal must depend on the competence of the defence.

6. The result therefore is that, in my opinion, the examination of the accused under S. 342 is not obligatory in a Sessions case. I think that where it is clear that the Court has not ascertained what the defence of the accused is, the failure to question him is fatal to the trial. But where the Court is already in possession of his defence, failure to prepare a proper record is an irregularity curable under S. 537.

7. In the case before us, the accused Chaku is a boy of 14, while the accused Raghu is an ex-chawkidar. The dacoity was committed on the night of 2nd June. They ware arrested on the 3rd and confessed forthwith to the village official, Ram Jiban. They were sent to the thana the same day but brought back to the place of occurrence on the 4th. On the 5th they were dispatched to Purulia and produced on the 6th before a Magistrate, who remanded them to jail in order that they might not confess without full consideration. On the 7th they were brought from the jail to the Magistrate's house and after full warning they repeated the confession, which had been made before Ram Jiban. No reason has been shown why the confession should be disbelieved, and I agree with the learned Sessions Judge that Raghu certainly was not likely to be tutored into making a false confession. In the committing Court Chaku denied having made any confession at all, while Raghu said he did not remember the details of his statement.

8. A further examination under S. 342, would have added nothing to the defence and I am satisfied that there has been no miscarriage of justice in this case. It was open to the accused to call evidence to show that the confessions were obtained by coercion and undue influence, but this they failed to do. In my opinion there was no irregularity in the trial and I would dismiss the appeal.

9. Sultan Ahmed, J.:— The appellant was tried on a charge of dacoity committed in the house of one Milan Mahto on 2nd June, 1919. On 3rd June, the accused and three others were suspected and they were arrested by the taraf sardar between 10 and 11 a.m on that date. The first information was lodged at the thana at 1 p.m, on which the police started investigation. On 5th June at 4 o'clock in the morning the accused was sent in custody to the Sub-divisional officer and he arrived in the Court of the Sub-divisional officer on 6th June. On 7th June his confession was recorded. He implicated himself and some others in the commission of the dacoity. He was then sent up to the Magistrate and an inquiry before commitment was taken up. Before the committing Magistrate he retracted his confession and stated that he did not make any such confession at all.

10. The Magistrate after recording all the evidence in the case committed the accused to the Court of Session. The learned Sessions Judge, disagreeing with the assessors, convicted the accused who has now preferred this appeal from jail. The case rests mainly, if not solely, on the retracted confession. The three circumstances which are faintly alleged to be corroborative of the confessions are, firstly, that the accuse was found sleeping in his house at 10 a.m when men in his position would be expected to be working in the fields. Secondly, that the Sub-Inspector had nothing to do with the making of this confession. I think it would be sufficient to point out that the law requires corroboration of confessions not by circumstances such as I have mentioned above. In my opinion it is doing violence to all principles of law bearing on the subject to treat such circumstances as corroborative evidence of a confession. Therefore, there is nothing except the retracted confession of the accused upon which the conviction could be based. I have already stated that when the committing Magistrate examined the accused under Section 342 of the Cr PC, the accused stated that he had made no confession. No further questions were put to him by the committing Magistrate and the matter ended there. In the Sessions Court it appears that the learned Judge omitted to examine the accused under Section 342 of the Cr PC, and, before I deal with the confession, it is necessary to consider the effect of this omission. Section 342 of the Cr PC, is to be found in Chap. 24, which contains general provisions as to enquiries and trials. That S. 342 is applicable to trials under Chap. 21 has been held in the case reported as Mahomed Husseni v. Emperor(9) and also in this Court by Das J., in the case of Misra Ahir v. Emperor(10), and non-compliance with Section 342 of the Cr PC, in trials under that chapter has been held to vitiate the conviction.

11. It now remains for me to consider whether Section 342 of the Cr PC, applies to Sessions trials. S. 342 provides for the examination of the accused after the witnesses for the prosecution have been examined and before he is called on for his defence. (The italics are mine.) Now, if we examine the provisions of Chap. 23, we find that S. 271 says that, when the Court is ready to commence the trial, the accused shall appear or be brought before it and the charge shall be read out in Court and explained to him, and he shall be asked whether he is guilty of the offence charged or claims to be tried. If the accused pleads guilty, the plea shall be recorded and he may be convicted thereon. Then S. 289, Cl. (1), says that when the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence. (The italics are mine). So that it will appear from an analysis of the two relevant sections I have quoted above, that Chap, 23 provides for examination of the accused once under S. 271, if that can be called an examination at all, and again under S. 289, Cl. (1) after the witnesses for the prosecution have been examined. But it has been suggested that the words “and the examination (if any) of the accused” in S. 289, Cl. (1), clearly show that it is left to the discretion of the Sessions Judge to examine the accused, and it is therefore argued that S. 342 does not apply to Sessions trials at all. An examination of S. 289, Cls. 1 and 4, will show that, after the prosecution witnesses have been examined and before the accused is asked whether he means to adduce evidence, he shall be examined by the Judge, and this examination is discretionary. But when accused says he does not mean to adduce evidence” the prosecutor shall sum up his case and, if the Court considers that there is evidence that the accused committed the offence, the Court shall call on the accused to enter on his defence.

12. The words “to enter on his defence” in “S. 289, Cl. (4), must not be confused with the words “to adduce evidence” under Cl. (1). It is clear that S. 289 does not provide for any examination of the accused after the examination of the prosecution witnesses and before he has been called upon to enter on his defence. S. 342 however applies to the examination of the accused at that stage and therefore the examination of the accused under S. 289, Cl. (1), in my opinion does not in the least affect the mandatory provision of Section 342 of the Cr PC. Provision is made under S. 256, Cl. (4), and under S. 289, Cl. 4, for calling upon the accused to enter upon his defence in warrant and Sessions trials respectively. But there is no provision, except under Section 342 of the Cr PC, for the examination of the accused before he is called to enter on his defence. Therefore S. 342 must be held to apply to warrant and Sessions trials. It does not, however, apply to summons trials, for the simple reason that there is no provision under Chap. 20 for calling upon the accused to enter on his defence, which is a condition which must be satisfied before the mandatory part of S. 342 can come into play. I therefore hold that S. 342 applies to a trial under Chap. 23 and the omission to examine the accused under S. 342 vitiates the trial and is fatal to the conviction of the accused. It has been pointed out in the case of Emperor v. Raju Ahilaji that the provisions of Section 342 of the Cr PC, have been consistently held by the Bombay High Court to apply to the case of an accused tried by a Sessions Judge even when he has been questioned on the case by the committing Court. It has also been held in Queen-Empress v. Viran that Section 342 of the Cr PC, applies to Sessions trials. The same view has been taken in the case of Emperor v. Ansuiya, where Burkitt, J., held that the examination of the accused under S. 342 in a Sessions case is imperative and cannot be substituted by the filing of a written statement on behalf of the defence.

13. It was also laid down in the case of Gandi Fataiya, In the matter of and Raja Padayachi, In re(11) that a Sessions Judge is not relieved from the necessity of questioning the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and that the provisions of S. 342 are mandatory and are applicable to a Sessions trial. The same view was adopted by Chitty and Beachcroft, JJ., in Emperor v. Dwijendra Chandra Mukerjee(12). The only case which seems to be in conflict with the view that I have taken, is the case of Khudiram Bose v. Emperor. It will be noticed that in this case the accused confessed his guilt when he was examined by the committing Magistrate under Section 342 of the Cr PC, and the learned Judges seem to have been greatly influenced by this fact when they were considering the question whether the omission to examine the accused by the Sessions Judge vitiated the trial. In any case if their Lordships meant to hold that S. 342 had no application to a trial under Chap. 23, I would respectfully dissent from that view. The learned Judges seem to have been moved by the language of S. 289, Cl. (1), which suggests that the examination of the accused is discretionary. But it seems to me, and I say so with the greatest respect to the learned Judges who decided that case, that they did not take into consideration the stage of the trial to which S. 289, Cl. (1), referred.

14. I have already pointed out that is the stage before the accused is asked whether he will adduce evidence or not, not the stage when, as is provided under S. 289, Cl. (4), he is called upon to enter on his defence. The real object of the latter part of S. 342, Cl. (1), is to ascertain from the prisoner how he can meet what the Judge may consider to be damnatory evidence against him and I agree that the true view is that the Court shall not convict a man without giving him an opportunity to explain his case. This is one of the first principles of criminal jurisprudence and the exercise of this principle could not have been, in my opinion, left to the discretion of the Court. An examination of the accused by the trial Court must be held to be imperative and this can only be if the provision of the latter part of S. 342, Cl. (1), is held to be mandatory. This being my view of the application of Section 342 to Chap. 23 of the Cr PC, I have no hesitation in holding that the omission to follow the mandatory provision of S. 342 has vitiated the trial and I would on that ground alone set aside the conviction of the accused. But I think apart from this question, there are two other grounds, upon which the order of conviction must be vacated. I have already pointed out that the case rests solely upon the confession of the accused. Before the committing Magistrate the accused asserted that he had made no such confession. The Sessions Judge did not examine the accused at all and did not therefore enquire from him as to the retraction of his confession. Even if it were held that the examination of the accused was discretionary, in my opinion, that discretion has not been properly exercised in this case, and if there was any case in which the Sessions Judge ought to have examined the accused, it was certainly this case, where the main, if not the sole, evidence was the confession of the accused, who was neither defended nor had filed any written statement. It was held in the case of Queen-Empress v. Viran cited above that when confessions are retracted, it is the duty of the Court to examine the accused with reference to their retraction to each and every statement incriminating themselves, Therefore on this ground also I think the conviction must be set aside.

15. The third ground, upon which also, in my opinion, the conviction is not maintainable is that it is unsafe to convict the accused on his retracted confession alone. Though there is no rule of law that a retracted confession must be supported by independent reliable evidence corroborating it in material particulars, yet it has been consistently held that as a matter of prudence it would be unsafe for a Court to rely and act upon confessions alone to convict the accused: ser Sofir-ud-deen, In re(13), Queen v. Amanullah(14), Empress v. Jadab Das(15), Queen-Empress v. Mahabir(16), Queen v. Jadub Das(17), Yasin v. King-Emperor(18), Queen Empress v. Rangi(19), Queen v. Thompson(20), Queen-Empress v. Bharamappa(21), Queen-Empress v. Yaru Nagar(22) and Deputy Legal Remembrancer v. Karuna Baistobi(23). If there had been other circumstances, from which I could come to an unhesitating conclusion that the confession was true and voluntary, in that case I would not have rejected the confession, but where I find that the Sessions Judge did not make any inquiry as to the retraction of the confession and where I find that, in spite of the assertion of the accused that he had not made any confession at all, the Magistrate, recording the confession, was not examined and where the assessors have rejected it, and where there is no circumstance which would in any way help me in coming to the unhesitating conclusion that the confession is true, I must refuse to act upon the confession alone and to convict the accused. I would therefore set aside the conviction and sentence on the accused.

16. Owing to difference of opinion between Mullick and Sultan Ahmad, JJ., the case was referred to Jwala Prasad, J.

17. Jwala Prasad, J.:— This case has been referred to me on account of difference of opinion between Mullick and Sultan Ahmed, JJ., who originally heard this appeal.

18. The appellant Raghu Bhumij alone with Chaku Bhumij has been convicted of dacoity by the Sessions Judge of Manbhum, Sambalpur, disagreeing with the verdict of the assessors.

19. The dacoity was committed in the house of one Malin Mahton of village Raherdih about midnight of Monday, 2nd June, 1919. Information of the occurrence was lodged at the Thana at 1 p.m on Tuesday, 3rd June, 1919. In the meantime Ramjiwan Singh (P.W 6), Taraf Sardar, Sarberia, six miles off Raherdih, hearing of the dacoity at once suspected the two accused as well as Ajodhya, father of accused Chaku, and Pahalwan, brother-in-law of accused Raghu, as according to him they were “all an idle lot.” This suspicion he communicated to constable Ramratan Singh (P.W 3), who was those days:

“on round duties in the village in connexion with outbreaks of dacoity in the neighbourhood.”

20. Thereupon the constable, along with Baneshwar Singh (P.W 4) and Kunjahari chowkidar (P.W 5), went to the houses of Ajodhya and Pahalwan, where they found Raghu sleeping at 10 a.m in the house of Pahalwan, his brother-in-law, and Chaku in the house of his father Ajodhya. Their suspicion was then deepened: they arrested the two accused and took them to Sardar Ramjiwan Singh and reported to him the fact of their having been found sleeping so late in the morning. Ramjiwan Singh says:

“the accused then eventually admitted they had a hand in the dacoity.”

21. Thereafter the accused were taken to the thana and the Sub-Inspector started investigation.

22. On 5th June at 4 o'clock the two accused were sent in custody to the Sub-divisional Officer, where they arrived on the 6th June. On 7th June the Sub-divisional Officer recorded the confessions of the accused. The accused were then sent up and an inquiry before commitment was started.

23. Before the committing Magistrate the accused were examined on 9th August under Section 342 of the Cr PC, when they denied having committed tbs dacoity and retracted their confession recorded by the Sub-divisional Officer on 7th June. They were then committed to the Court of Session and were tried with the aid of assessors.

24. In the Court of Session the accused pleaded not guilty to the charge. Seven witnesses were then examined on behalf of the prosecution. The accused being undefended, none of the witnesses appear to have been cross-examined on their behalf. A few questions however appear to have been put by the Court to P.W 4.

25. The Sub-divisional Officer, who had recorded the confessions of the accused on 7th June, was not examined, but their confessions were put in evidence on behalf of the prosecution under Section 80 of the Evidence Act, and marked Exs. 2 and 3, and the examinations of the accused in the Court of the committing Magistrate, wherein they had retracted their confessions of 7th June, were then admitted in evidence under S. 287 of the Code. There is no record, or anything in the order sheet, showing that the accused were examined by the Sessions Judge under Section 342 of the Cr PC, after the close of the evidence for the prosecution and before they were called on for their defence. The accused did not adduce any evidence and the Public Prosecutor summed up his case. It does not appear from the order sheet that the accused themselves addressed the Judge or the assessors in reply after the Public Prosecutor summed up the case.

26. Both the assessors agreed in acquitting the accused. As to the confessions, Baneshwar Lal, Assessor No. 1, was of opinion that they were procured by threats and he would not believe them. Chottoo Mian, Assessor No. 2, said that they were not reliable. The learned Sessions Judge disagreeing with the opinion of the assessors has convicted the accused. The reasons, upon which the learned Sessions Judge has accepted the retracted confessions of the accused, are: firstly, that they have not explained why they were sleeping till 10 in the morning when men of their position would be expected to be working in the fields, and secondly, that they failed to show that they were tutored by the police to make the confessions.

27. This appeal was preferred from jail by Raghu Bhumij and was heard by a Criminal Bench presided over by Mullick and Sultan Ahmed, JJ. In the absence of any record of the examination of the accused under Section 342 of the Cr PC, in the Court of Session, the learned Judges held that there was an omission on the part of the Sessions Judge to examine the accused under Section 342 of the Cr PC, but they differed as to the effect of this omission upon the validity or otherwise of the trial. Mullick, J., was of opinion that it was neither illegal nor irregular and an examination of the accused under S. 342 of the Code is only directory and not mandatory in a Sessions case. Sultan Ahmed, J., on the other hand, held that the provisions of S. 342 are mandatory and the omission to examine the accused vitiated, the trial. On that ground alone he would set aside the conviction. The learned Judges further differed as to the propriety of the conviction in the present case upon the retracted confession of the accused.

28. As to the first point, it is conceded by Mullick, J., that S. 342 is a general provision applicable to trials of all cases including Sessions cases. The view that the provisions in S. 342 are only discretionary and not obligatory is opposed to the plain language, object and scope of the section. The first part of the section no doubt is discretionary as is clear from the use of the word “may.” Under it the Court is empowered to examine the accused at any stage and at any time it considered necessary without previously warning the accused. The second part is obligatory, as is clear from the use of the word “shall.” It requires the Court to examine the accused after the witnesses for the prosecution have been examined and before the accused is called on for his defence.

29. In the earlier Acts, the examination of the accused person was discretionary with the Court: vide S. 373, Act 25 of 1861 and Act 8 of 1869. In Act 10 of 1872, while the discretionary nature of the examination was retained so far as inquiries and trials of cases other than Sessions cases were concerned, it was made compulsory for Sessions trials. S. 250 of that Act occurred in the chapter relating to Sessions trials and ran as follows:

“The Court may from time to time at any stage of the trial examine the accused person and shall question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.”

30. In 1882 the provisions relating to the examination of an accused person, which were scattered in different chapters in the previous Acts, were removed from those chapters and brought under one chapter headed “General provisions relating to inquiries and trials.” S. 250, Act 10 of 1872, was therefore removed from the chapter relating to Sessions trials, but its provisions were embodied in their entirety in S. 342 of the Code of 1882 as well as 1898. The object of the examination of the accused person being to enable him to explain any circumstance appearing in the evidence against him, S. 250 of the Code of 1872 in the chapter relating to Sessions trials conferred upon the accused person a right of being examined after the witnesses for the prosecution were examined and before he was called on for his defence. Such a vested right could not be taken away from the accused person without any express provision to that effect in the subsequent legislation of 1882 and 1908. Par from there being any indication to divest an accused person of this right, the Codes of 1882 and 1898 seem to expressly confirm it by S. 342.

31. It is than said that S. 289, Cl. (1), occurring in Ch. 23 relating to Sessions trials in the present Code, controls S. 342 and makes the examination of the accused person discretionary by the use of the words “examination, if any,” in that section. But S. 289 in itself does not make any provision for the examination of the accused person. Its object is to simply lay down the stage at which “the accused shall be asked whether he means to adduce evidence” namely, after the examination of the witnesses for the prosecution and the examination, if any, of the accused person, which the Court in its discretion may hold under the first part of S. 342.

32. This is with a view to enable the Court apply the procedure laid down in subsequent Cls. (2), (3) and (4), S. 289, depending upon the answer of the accused that he does or does not mean to adduce any evidence. The calling upon the accused to state “whether he means to adduce evidence” is different from, and happens to be much earlier in point of time and stage than the calling on him “to enter on his defence.” The latter stage arises only under Cl. (4) when the Court considers that there is evidence that the accused committed the offence. At this stage the obligatory part of S. 342 cornea in which requires the Court to question the accused generally on the case to enable him to explain any circumstance appearing in the evidence against him. It is immaterial whether the Court has examined the accused person several times or has not examined him at all under the first part of S. 342. The examination, if any, referred to in Cl. (1), S. 289, is under this part of S. 342 and it does not relieve the Court from its duty of examining the accused before he is called upon to enter upon his defence as defined in S. 290 of the Code.

33. The words examination, if any, also occur in S. 253 relating to trials of warrant cases and in S. 263(g) relating to trials of summons cases: yet it has been held that the examination of the accused person is obligatory in such cases under Section 342 of the Cr PC, before the accused is called on for his defence, the omission of which vitiates the trial; and the conviction should be set aside: vide Mahomed Hossein v. Emperor and Misra Ahir v. Emperor decided by Das, J., and Emperor v. Harischandra Talcherkar(24). It is difficult to see why the principal of these authorities should not apply to Sessions cases, particularly when S. 256 in the chapter relating to warrant cases is similar to S. 289, Cl. (4), in the chapter relating to Sessions trials. As a matter of fact all the High Courts in India seem to agree that the examination of an accused person is obligatory in Sessions trials also: Emperor v. Ansuiya, Emperor v. Savalya Atma Pastya, Emperor v. Raju Ahilaji, Basapa Ningapa…Accused v. Emperor….(25), Gandi Tataiya, In the matter of, Queen-Empress v. Viran, Raja Padaiyachi, In re and Emperor v. Nga Po Mya(26). No doubt, in the case of Gopal Hajjam, In re Jackson and Ainslie, JJ., took a contrary view, but that was decided in February 1871 when the Acts of 1861 and 1869 were in force, under which the examination of the accused was discretionary: vide Ss. 372 to 374 of those Acts. Besides in that case the accused severally addressed the jury themselves and in the circumstances it was held that the prisoners were not prejudiced by the omission to make any note of the defence set up by them under the aforesaid sections. But when S. 250, Act 10 of 1872, made the examination of an accused person compulsory in Sessions trials, it was held in 1881 in the case of Abdul Gafoor, In re that it was not competent to the Court to refuse to allow the prisoner to make a statement. This view finds support in the observation of Sir Lawrence Jenkins in the Special Bench case of Emperor v. Nogendra Nath Sen Gupta(27) and of Beachcroft, J., in the case of Emperor v. Dwijendra Chandra Mukerjee.

34. Brett and Ryves, JJ., in the case of Khudiram Bose v. Emperor thought that the examination of the accused person under S. 342 was not necessary and the omission did not constitute an illegality which would vitiate the trial. This is a solitary case, and perhaps the view taken therein is due to the peculiar circumstances of the case, where the accused admitted his guilt and had been examined in detail under S. 342 of the Code before the committing Magistrate.

35. The majority of the Judges in the several High Courts have held that in the Sessions trials also the examination of the accused person is mandatory. There is however difference of opinion as to whether the omission was curable under S. 537 of the Code.

36. Burkitt, J., in the case of Emperor v. Ansuiya and the earlier decisions in Madras in the cases of Gandi Tataiya, In the matter of and Raja Padayachi, In re, would under certain circumstances condone the omission, but these Madras cases in spite of that ordered a retrial.

37. The Bombay High Court had always set aside the convictions in such circumstance?, although in the case of Emperor v. Savalya Atma Pastya some serious doubt was expressed as to the omission being fatal.

38. Since the decision of their Lordships of the Judicial Committee in Subramania Iyer v. King-Emperor(28), the Burma Court in Emperor v. Nga Po Mya and the Bombay High Court in Basapa Ningapa…Accused v. Emperor…., probably not cited before Mullick, J., held that the omission was fatal to the trial and was incurable by the provisions of Section 537 of the Cr PC. In the latter cases it was further observed, as in the case of Queen-Empress v. Viran, that it is immaterial that the appellant had an opportunity of making a statement before the committing Magistrate or that the accused was defended by a pleader, for such an important step in the procedure cannot be left to his pleader. In the present case no written statement was filed by the accused, and even if it were filed it could not take the place of an examination under S. 342. They were undefended and there was no cross-examination by them of any of the prosecution witnesses. They had retracted their confessions in the Court of the committing Magistrate. It was incumbent upon the Sessions Judge in the circumstances of the present case to have examined the accused before acting upon their retracted confessions, even if such an examination was only discretionary.

39. The learned Sessions Judge in his judgment referring to the confessions said that “the accused retracted them both here and in the lower Court,” and in another place he said that “the accused simply alleged that they were tutored.” From this the learned Assistant Government Advocate contended that the accused were probably examined by the Sessions Judge. I therefore inquired of the Sessions Judge as to the materials upon which the aforesaid passages in his judgment were based, and in reply in his letter No. 420R, dated 27th March, 1920, the learned Sessions Judge says that he examined the accused in his Court under S. 342 of the Code. But he did not record the answers and the questions inasmuch as the accused had nothing to add to what they had said before the committing Magistrate. In this he has contravened the provisions of Section 364 of the Cr PC. It is more than doubtful whether an omission to prepare a record of the examination of the accused persons under S. 364 can be cured by S. 533 of the Code. Even if it could be cured, the report that he has now forwarded goes to show that he did not do more than reading out to them the confessions recorded by the accused on 7th June before the Sub-divisional Officer and the statements taken by the committing Magistrate on 9th August. The accused adhered to the retraction of the confessions. They were not examined as to the circumstances 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 S. 342 and to prepare a proper record thereof under S. 364 of the Code, so much essential in a Sessions trial where an accused is entitled to have his statement considered by the assessors and the appellate Court. The learned. Sessions Judge has, by disregarding the strict provisions of law, seriously prejudiced the accused in the present case, even if these provisions were only directory and not mandatory. The trial is therefore vitiated.

40. Now as to whether this is a case where a retrial should be ordered or the accused be set at large. The learned Sessions Judge has relied on two circumstances already noticed for accepting the retracted confessions of the accused:

(1) That they were found sleeping late in the morning at 10 a.m in their houses. The learned Sessions Judge himself does not think it by itself to be a vary suspicious fact, except that the accused by their position would at that time be expected to be working in the fields. Even if it be suspicious, it does not necessarily show that the accused were concerned in the dacoity in question, five or six miles away from the place of occurrence. It does not however exclude the possibility of their being concerned in some other dacoity rampant in the locality, or it may be due to some other circumstances.

(2) The learned Sessions Judge says that there is no reason for the police to have tutored the accused. The accused did not make any confessions when the constable arrested them in their houses, but when they were brought to the Taraf Sardar and reported to have been found sleeping late, they “then eventually admitted they had a hand in the dacoity.” The Taraf Sardar along with the other police officers was, according to the finding of the Magistrate, suspected as being “hand in glove with the dacoits” and was therefore interested in exculpating himself and the other village police officers from any complicity in the dacoity in question and making the accused scapegoats.

41. I would not therefore take the confessions as free from suspicion, particularly when the accused retracted them at the first opportunity offered to them to make a statement about them before the committing Magistrate. The learned Sessions Judge towards the end of his judgment says that he accepted the confessions as being corroborated by circumstances, probably the aforesaid two circumstances. They can in no sense be said to be corroborations of the incident of the dacoity in question and do not necessarily show that the accused took part in it.

42. Now as to whether the accused can be convicted upon their retracted confessions uncorroborated as they are by any circumstance.

43. The confession of Raghu Bhumij is in the following terms:

“Last Sunday I committed a dacoity at Raberdih. Jurala Kheria, Ranjit Kheria, Palan Bhumij, Mansa Bhumij, Budha Bhumij, Ajodhya Bhumij, Beni Gour, Jadu Dhopa, Chanda Kurmi, Suka Bhumij, all of them, were with me. We gathered together in the house of Lohar Manjhi at village Kuchia. Then we started for Raherdih, where in a Mahto's house we lighted a torch and committed a dacoity. Hurra Kheria first entered the house. Ranjit and Hurra Kheriah bound three persons of the house and beat them. We had tangis with us. We then took away paddy and rice. Chanda Kurmi, who was with us, took clothes. We got no other things. 1 got five seers of rice. We distributed (the articles) on the bank of the bandh in the forest of Kumir Kocha. Besides this I have nothing more to say.”

44. Chaku Bhumij in his confession, after saying that Beni Gour, Jadu Dhopa, Chanda Kurmi, Ranjit Kheria, Hurra Kheria, Palan Bhumij, Mansa Bhumij and Ajodhya Buhmij had committed dacoities at Barndhi, Bulandih and Margaon (in the last also Bhim Mura, Mahinda Kalu, Lohar Manjhi and Kanai Mahton), stated

“all the above men were daecits in the dacoity at Raherdih and six others of village Kushthir whose names I do not know. In all these dacoities I threw stones, and got paddy and rice.”

45. Then he mentioned the different places where the booties of the four dacoities were distributed. As regards the Raherdih dacoity in question, he stated that the “articles were distributed near the Balkucha Bandh.”

46. As to what happened after the dacoits arrived at the place of occurrence, the first information has given much more details and vivid description of it, covering a typed page and a half more than the confessions of the accused. A reference to the documents themselves will show this. Chaku has given no details beyond stating that he took a minor part of throwing stones at the house of the complainant. Raghu's account of it consists only in stating that the dacoits lighted a torch at the house of the complainant and tied down and beat three persons. Even in the little details that they have given they have been contradicted by the complainant in the first information, where he says that the dacoits had kerosine oil lamps (diba alo) in their hands at the time of committing the dacoity and that the dacoits tied and beat him and his father and no other persons. Chaku does not mention the day on which the dacoity took place. Raghu says that it was on “Sunday last.” The dacoity, according to the complainant, took place on Monday, 2nd June and the information was lodged next day (Tuesday) at 1 p.m The dacoity having taken place on the midnight of Monday, one might possibly describe it as having taken place on Monday or Tuesday, but in no circumstance could it be said as having taken place on Sunday.

47. The complainant says that the dacoits were galpattas with a view to concealing their faces. None of the accused make any mention of it.

48. Raghu Bhumij says that they distributed the booties of the dacoity on the bank of the bandh in the forest of Kumir Kocha. Chaku says that the distribution took place near the bank of the Bankucha bandh. The complainant in the first information says that in the morning of the dacoity he, with the choukidar and some persons of the village, went to the south up to the bandh (tank) of Bara Paranmar tracing the footprints of the dacoits. We do not know whether these refer to the same place known by different names or whether they are different places. If they are different places the story of the distribution of the booty becomes very suspicious, still more if these bandhs happen to be in different directions from the place of occurrence. Chaku Bhumij does not say where the dacoits collected together before going to the place of occurrence. Raghu Bhumij says that they all gathered in the house of Lohar Manjhi at village Kuchia. We do not know where this village Kuchia is and bow far it is from the place of occurrence.

49. The prisoners named a number of persons as having taken part in the dacoity. Who these person are, where they live, how they happened to collect together and proceeded to the place of occurrence have not at all been disclosed. The police officers contented themselves with having the confessions of these two persons and did not take them as a guide for investigating into the further details of the dacoity. These two accused persons could have been taken from place to place so as to give a clue to the history of the occurrence, how the dacoity was planned, how and when the dacoits met together, the route taken by them and the incidents that happened in their nefarious journey to the place of occurrence and back till they dispersed and the parts played by each of them in these incidents. The confessions have not been tested or utilized. They are simply general statements that can fit in with any dacoity.

50. There is yet another important and to my mind, the most fatal omission in both the confessions. Raghu does not name Chaku as being one of the dacoits and Chaku does not mention Raghu. If they have falsely concealed the names of each other their confessions are tainted with falsehood. If, on the other band, the omission of each other's name in their confessions is bona fide on account of either of them not having taken part in the dacoity, cash of them is entitled to acquittal. In my view of the matter, the confessions of these accused persons cannot be acted upon. The Court has to be satisfied as to the truth of the confessions, treating them as substantive evidence in the case, and hence the same test would apply to them as to the statements made by witnesses. Greater care is required when the confessions, as in this case, have been retracted, and I agree with the view taken in the case of Queen-Empress v. Maiku Lal(29), that

“where a confession is not supported by the evidence of the witnesses, a Judge must examine very carefully to see whether it gives those details which indicate that it is a natural narrative of what took place in the presence of the man making it and is not at variance with any evidence in the case which is believed, and it not merely a parrot like repetition of a story put into the man's mouth.”

51. Testing the confessions in the present case by the aforesaid test, I cannot feel convinced that the prisoners took part in the dacoity. They do not bear out the impression of truth. They do not appear to contain a true account of the prisoners' connexion with the crime. No doubt, even a retracted confession, tested as above, may carry conviction to the mind of the Judge and be acted upon so far as the confessing prisoner is concerned. This is the reason why one looks for an independent and reliable evidence to corroborate a retracted confession on material particulars: vide Guja Majhi…Accused v. Emperor…Opposite Party.(31), and Jogjiban Ghose v. Emperor(32).

52. Both the assessors, who heard the evidence in the case have rejected the confessions as being unreliable. For the reasons given above, I have no hesitation agreeing with them and with Sultan Ahmed, J., in acquitting the accused. Although only Raghu has appealed, there is no more evidence against Chaku, who has not appealed, than against Raghu: rather the evidence against him is weaker than against Raghu, and his confession lacks much more in detail than that of Raghu.

53. While considering the case of Raghu, this Court is competent to set aside the conviction of Chaku as well, as laid down in Broja Rakhal Mozumdar v. Empress(33), Queen v. Joffar Ali(34), Queen-Empress v. Karam Ali(35), Queen-Empress v. Ratan Singh(36) and Bachinta v. Emperor(37).

54. The result is that the convictions of and the sentences passed against both the accused, Raghu Bhumij and Chaku Bhumij, are set aside.

V.S/R.K

55. Appeal allowed.