Bhokhari Singh and Others vs The King-Emperor

Kulwant Sahay, J.—The petitioners have been convicted u/s 147 and soma u/s 324, I.P.C., and sentenced to six months'' rigorous imprisonment by the learned Sub-Divisional Officer of Supaul. On appeal the conviction and sentence have been upheld by the learned Sessions Judge. The ground taken in this Court for setting aside the conviction is that the provisions of Section 342 of the Criminal Procedure Code have not been complied with. What happened was this: On the 30th July, 1923, the examination of all the prosecution witnesses was finished and they were all cross-examined and on that date the case was adjourned to the next day for examination of the accused and framing of charge. On the 31st July the accused parsons were examined before the charges were framed. After they had been examined, charges were framed and the prosecution witnesses were further cross-examined. After the framing of the charge and further cross-examination of the prosecution witnesses the learned Magistrate only asked the accused "Have you anything further to say?" and each one of them answered "No". It is contended by Mr. Manuk that this sort of examination is not a sufficient compliance with the provisions of Section 342 of the Cr.P.C. The objection was taken before the learned Sessions Judge and he disposed of it with the following remarks;" It is urged that there was no proper compliance with Section 342 of the Criminal Procedure Code. It appears that the accused were examined fully just before the charges were framed.

There was further cross-examination after the charges were framed, and then the accused were again examined briefly. This is a sufficient compliance with the provisions of the Section. It has been contended that the object of examining the accused u/s 342 is, as expressly stated in the section itself, for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, and for this purpose the Court should examine the accused generally on the case after the witnesses for the prosecution have bean examined and before he is called on for his defence. No doubt there was an examination of the accused before the charges were framed, bus that examination is not what is contemplated by the second part of Section 342, that was an examination which it was optional to the Court under the first part of Section 342. But after the witnesses for the prosecution have all bean examined and cross-examined and before the accused is called en for his defence, it is compulsory for the Court to question the accused in such a way as to enable them to explain any circumstances which appear in the evidence against him. The mere asking the accused as to whether they had anything further to say is not a sufficient compliance with the second part of the provision of Section 342. The question must be framed in such a way as to enable the accused to know what ho is to explain, as to what are the circumstances which are against him and for which an explanation is needed. A general question as to whether they had anything further to say is not a sufficient compliance with the requirement of the law. That being so the conviction of the petitioners is bad in law see cases of Raghu Bhumji v. Emperor (1920) 5 Pat. L.J. 430, Fatu Santal v. Emperor (1921) 6 Pat. L.J. 147. In this view of the case the conviction and sentence must be sat aside and the case sent back to the Deputy Magistrate for retrial.