Gurdial Singh vs Bhola Halwai

Macpherson, J.—This is an application in revision against the conviction of the petitioner u/s 323 of the Indian Penal Code and the fine of Rs. 40 imposed upon him.

The assault alleged was one with a lathi on the right hand and the left hand; but its importance lay in the fact that it was inflicted by a zemindar upon a low caste raiyat for refusing to give up his work in his own field in order to labour in that of the assailant.

It is contended by Mr. S. Sinha in revision that the conviction cannot stand because the Magistrate failed to comply with the provisions of Section S42 of the Code of Criminal Procedure. Mr. Sinha further submits that the decision of the Judicial Committee in Abdul Rahman v. Emperor 100 Ind. Cas. 227 : 8 P.L.I. 150 : AIR 192 P.C. 44 : 31 C.W.N. 271 : 25 A.L.J. 117 : (1927) M.W.N. 103 : 38 M.L.T. 64 : 4 O.W.N. 283 : 28 Cri.L.J. 259 : 6 B.L.J. 65 : 5 R. 53 : 52 M.L.J. 585 : 29 B. L.R. 813 : 45 C.L.J. 441 : 7 A.I.Cr.R. 362 : 54 I.A. 96 (P.C.) does not overrule certain decisions of this Court to the effect that a trial in which the Magistrate fails to examine the accused after the cross-examination of the prosecution witnesses has been completed is illegal from that point. This particular submission originates in the fact that when the application was made to the Sessions Judge of Shahabad he held that in the ruling cited the Privy Council has repudiated the decisions in India based on the general proposition that a breach of a mandatory provision of the Code vitiates the trial and has upheld the statute law set out in Section 537 of the Code of Criminal Procedure against those decisions, so that the criterion is whether there has been a failure of justice as a result of the irregularity. Certainly Section 360 on which the decision cited proceeded is no less mandatory than Section 342 and the view taken by the learned Sessions Judge has been generally accepted in this Court in respect of Section 342 also. In my opinion the view of the learned Sessions Judge is sound but the present application in revision fails also on another ground apparent on the record.

The accused was examined by the Magistrate before a charge was framed and stated that he would file a written statement. After cross-examination of prosecution witnesses was completed the case was adjourned to the 3rd October for defence. On that day the written statement of the accused was ready, as the date on it indicates, but was not filed as the accused declined to produce any defence witnesses and the case was adjourned to the 10th October for argument. On that date the written statement was signed and dated by the mukhtar for the defence and filed and argument having been heard the case was adjourned for judgment till the 15th October when it was delivered.

Now, even before the decision in Abdul Rahman v. Emperor 100 Ind. Cas. 227 : 8 P.L.I. 150 : AIR 192 P.C. 44 : 31 C.W.N. 271 : 25 A.L.J. 117 : (1927) M.W.N. 103 : 38 M.L.T. 64 : 4 C.W.N. 283 : 28 Cri.L.J. 259 : 6 B.L.J. 65 : 5 R. 53 : 52 M.L.J. 585 : 29 B. L.R. 813 : 45 C.L.J. 441 : 7 A.I.Cr.R. 362 : 54 I.A. 96 (P.C.) the view of this Court as to interference in criminal revision is to be found in the decisions in Mir Tuawan v. Emperor 69 Ind. Cas. 383 : 4 P.L.T. 60 : AIR 1922 Pat. 388 : 1 Pat. 31 : 23 Cri.L.J. 703 : 1 Pat.L.R. 35 Cr. and Mohiuddin v. Emperor 86 Ind. Cas. 459 : 6 P.L.T. 154 : (1925) Pat. 112 : AIR 1925 Pat. 414 : 3 Pat. L.R. 110 Cr. : 26 Cri.L.J. 811 : 4 Pat. 488. In the former the accused persons had not been examined orally at any stage but filed written statements both after the examination of the prosecution witnesses and also after the examination of the defence witnesses and it was held that as he had not been prejudiced and there had been no miscarriage of justice the High Court would not interfere in revision. In the latter the test laid down was whether there had been prejudice to the accused by reason of the absence of judicial questions and whether the defect is such as is cured by Section 537 of the Code of Criminal Procedure. In that case the accused had, as here, been examined before the charge was framed when he stated that he would file a written statement and he did so on the 16th June on which, again as in the present instance, he declined to call witnesses. On the 17th June the Magistrate asked him whether he had anything further to say and he replied in the negative. The Court held that even if he had not been questioned on the 17th June, the written statement would have relieved the Magistrate from the necessity of examining him orally in reference to the matters elicited in cross-examination and re-examination of the prosecution witnesses. With all respect I agree with these decisions. In the present case regard is also to be had to the fact that the written statement was prepared two weeks and filed three weeks after the close of the prosecution case.

But assuming that Section 342 was not strictly complied with, the facts stated show at most a slight irregularity and the case is Covered by the decision in Mir Tilawan v. Emperor 69 Ind. Cas. 383 : 4 P.L.T. 60 : AIR 1922 Pat. 388 : 1 Pat. 31 : 23 Cri.L.J. 703 : 1 Pat.L.R. 35 Cr. if the accused was not prejudiced.

It is contended that there must have been prejudice because the Magistrate did not even read the written statement. This assertion is based on the statement in the judgment that "the accused has failed to explain the facts and circumstances appearing against him."

I cannot accede to the contention that this expression indicates that the Magistrate did not read the written statement of the accused. As well when read by itself in its context in the judgment, as when read along with the written statement, it exactly depicts the position. That furnishes the strongest ground for holding that the Magistrate did read and carefully consider the written statement which so far from being an explanation of the matters appearing against the accused devotes itself to unsupported charges of enmity on the part of complainant and his witnesses, and points out that independent witnesses have been withheld and that no expert examined the complainant''s injuries. Transparently the accused has not been in any measure prejudiced by the failure to examine him after the close of the prosecution case.

The application is without merits and the rule is discharged.