D. Samiyappan and others vs Vaidyalingasami

Gokulakrishnan, J.—The above two revisions arise out of an order passed by the Sessions Judge of Salem. Though the facts of the case are

different in these two revision petitions, the order of the learned Sessions Judge purely rests upon the alleged illegal procedure adopted by the

Judical First Class Magistrate No. 2, Salem. According to the learned Sessions Judge, the Judicial First Class Magistrate No. 2, Salem, while

discharging the accused in these revision cases, should not have questioned the accused u/s 245 of the Code of Criminal Procedure.

Mr. Veluswami, the learned Counsel appearing for the Petitioners in both the revision petitions submits that the questioning of the accused while

discharging them will not in any way vitiate the proceeding and this can be construed only as superfluous and cannot in any way affect the legality of

the order passed by the learned First Class Magistrate No. 2, Salem.

Section 245 of the Code of Criminal Procedure reads as follows:

If upon taking all the evidence [referred to in Section 244 the Magistrate considers, for reason, to be recorded, that no case against the accused

has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

Section 313 of the Code of Criminal Procedure reads as follows:

In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the

Court-

(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;

(b) shall, after the witnesses for the prosecution have bees examined and before he is called on for his defense, question him generally on the case;

Provided that in a summons-case where the Court has dispensed with the personal attendance of the accused, it may also dispense with his

examination under Clause (b).

(2) No oath shall be administered to the accused when he is examined under Sub-section (1).

(3). The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may be taken faith consideration in such inquiry or trial, and put in evidence for or against him in any other

inquiry into, or trial for, any, other afforded which such answers may tend to show he has committed.

Thus, from the two sections referred to above, it is clear that the Court can at any stage-question the accused. Originally in Section 253 which

corresponds to Section 244 of the present Code, the questioning of the accused has been mentioned. But in the present Section 244 it has been

omitted. In the Law Commission Report it has been stated as follows -

We propose to make two amendments in Section 233(1)in view of the comprehensive provision in Section 342 (corresponding to Section 313 of

the present amended Code of Criminal Procedure) relating to examination of the accused, the words ""and making such examination, (if any) of the

accused as the Magistrate thinks necessary"" are practically superfluous and may be omitted-When the Magistrate finds that no prima facie case

baa been made out against the accused there will be hardly anything to examine him about. Secondly, it is desirable to make it clear in Sub-section

(1). as already done in Sub-section (2), that the Magistrate should record his reasons for discharging the accused. An order of discharge under

either Sub-section is a judicial order and subject to revision.

Thus, it is clear that the amended Code of Criminal Procedure omitted the words which enabled the court to examine the accused as per Section

253(1). This is because of the fact that it is found the mentioning of the questioning under this section is superfluous in view of Section 342

corresponding to Section 313 of the present amended Code of Criminal Procedure Thus, in my view, the examination of the accused by the

Magistrate concerned will not in any way vitiate the proceedings, but it may be superfluous. Hence, the reasoning of the learned Sessions Judge in

both these cases under revision is wrong. Further I find that the learned Sessions Judge while observing that the questioning of the accused by the

Magistrate to take the case on file and to frame the charges in this case. There is absolutely no discussions as such, by the learned Sessions Judge

regarding the order passed by the Magistrate on merits.

In these circumstances, I set aside the order of the learned Sessions Judge passed in Crl. R. C. 22 and 30 of 1976 and remand the matter to the

file of the learned Sessions Judge, Salem. The learned Sessions Judge, Salem, will take the case on file and dispose it on merits bearing in mind the

observations made by me in paragraph supra regarding the questioning of the accused by the trial court concerned.