Mitarjit Singh Accused v. King Emperor Opposite Party.

Coutts, J.:— This is an application in revision made in respect of an order passed by the Sessions Judge of Bhagalpur upholding convictions of the petitioners under Sections 147 and 148, I.P.C

2. The first point urged in support of the application is that the provisions of Section 342 of the Cr PC have not been complied with in this case. It appears that after the prosecution witnesses had been examined-in-chief the question was put to each of the accused whether they had committed offences under Sections 147 and 148. They each replied “no,” and further each stated that he would file a written statement. Subsequently the prosecution witnesses were cross-examined but after the cross-examination and before the accused were called on to enter on their defence there was no further examination of the accused.

3. The question is whether this examination of the accused before cross-examination of the prosecution witnesses is a compliance with the provisions of Section 342 of the Cr PC. The point is one of some difficulty and so far as I know it has not yet been decided. There are a series of decisions of this Court with reference to Section 342, Raghu Bhumij v. King Emperor(1), Fatu Santal v. King Emperor(2) and Gulam Rasul v. King Emperor(3).

4. But in these cases there was no examination of the accused at all and it is now settled law that in such cases the section being man datary the trial is bad.

5. In the present case there has been an examination of the accused under Section 342 but it was before the prosecution witnesses were cross-examined and the question is whether it was also necessary to examine them again after cross-examination.

6. Section 342, Clause (1) 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 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.”

7. It is with the last portion of this clause that we are concerned, and on behalf of the petitioners it is contended that “examined” here includes cross-examination and re-examination, while on the other hand it is contended that cross-examination is part of the defence and that “examined” refers only to the examination-in-chief. It appears to me that the latter contention is unsustainable. If we look at Chapter XXI which deals with the trial of warrant cases, we find in Section 256 the following provision:—

“If the accused refuses to plead, or does not plead, or claims to be tried, he shall be required to state whether he wishes to cross-examine any, and, if so, which of the witnesses for the prosecution whose evidence has been taken. If he says he does so wish, the witnesses named by him shall be re-called and, after cross-examination and re-examination (if any), they shall be discharged. The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross examination and reexamination (if any), they also shall be discharged. The accused shall then be called upon to enter upon his defence and produce his evidence.”

8. It is clear then that the accused does not enter on his defence until the witnesses have been examined, cross-examined and re-examined.

9. It is contended, however, that, even if this be so, still Section 342 does not definitely provide that the examination of the accused shall be made after the cross-examination and re-examination of the prosecution witnesses, and that it leaves it to the discretion of the Magistrate to examine the accused at any time after the examination-in-chief and before he is called on to enter upon his defence.

10. It is urged that if this were not so the words “cross-examination and re-examination” would have been added in Section 342. I am unable to accept this contention. Section 137 of the Evidence Act defines examination-in-chief, cross-examination and re-examination as follows:—

“The examination of a witness by the party who calls him shall be called his examination-in-chief.”

“The examination of a witness by the adverse party shall be called his cross-examination.”

“The examination of a witness subsequent to the cross-examination by the party who called him, shall be called his reexamination.”

11. “Examination” then in the Evidence Act includes “examination-in-chief,” “cross-examination” and “re-examination”, and that this is also so in the Code of Criminal Procedure would appear from Chapter XXIII-E which deals with the trial of cases before High Courts and Courts of Sessions, where examination has been given the same meaning. “Examined” then in Section 342 in my opinion includes cross-examination and re-examination. Nor on general principles do I think it could be otherwise.

12. The purpose of the examination of an accused under Section 342 is to enable him to explain any circumstances appearing in the evidence against him; it is a provision for the benefit of the accused, and, to enable him to obtain the full benefit of the section, it is clear that he must be examined after the cross-examination of the prosecution witnesses is over. 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.

13. Considering then both the wording of the section and its intention it seems 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.

14. It has been further urged, however, that even if this view be correct in the particular case before us the failure of the Magistrate to examine the accused at this stage was merely an irregularity because he examined them at a previous stage and they stated that they would file written statements; it is contended that this being so, the Magistrate has committed-nothing more than an irregularity in not examining them at the later and proper stage.

15. I am unable to accept this contention. The portion of the section with which we are concerned is mandatory, and, if the view which I have taken of the law is correct, the Magistrate had no option but to examine the accused at the stage I have indicated; if he did not do so he omitted to do something in regard to which he had no discretion and consequently he has committed an illegality and not merely an irregularity.

16. This contention therefore fails and for the reasons I have given the convictions and sentences must, in my opinion, be set aside.

17. I would remand the case for rehearing from the stage at which the trial became illegal.

18. Adami, J.:— I agree.

19. Case remanded.