Parsotim Das and Others vs Emperor

Kulwant Sahay, J.—The petitioners were convicted of an offence punishable tinder Section 121 of the Indian Railways Act. The petitioner No. 1 was sentenced to pay a fine of Rs. 60 and the petitioner No. 2 to pay a fine of Rs. 30.

The only question raised in the present application for revision is that the provisions of Section 342 of the Code of Criminal Procedure have not been complied with. The trial in this case was a summary trial under the provisions of Chap. XXII of the Code. Section 263 of the Code prescribes the form in which certain particulars have to be recorded and Clause (g) of Section 263 provides that, the pela of the accused and his examination (if any) are to be recorded in the form prescribed. Section 364 of the Code prescribes the mode in which an accused person ought to be examined by a Magistrate or by any Court other than a High Court. Clause (4) of Section 364, however, says:

Nothing in this section, shall be deemed to apply to the. examination of an accused person u/s 263 (or in the course of a trial held by a Presidency Magistrate).

The case made is that the examination of the accused persons by the Magistrate was not in compliance with the provisions of Section 364 inasmuch as the proper questions to be put to the accused u/s 342 were not put to him. It appears from the order sheet of the Magistrate that the examination of the prosecution witnesses was finished on the 10th August, 1926, and thereafter the accused were told what the charge against them was and they pleaded not guilty to the charge. Thereafter on the 20th August, 1926, one prosecution witness was re-called and examined. Thereafter as appears from the order-sheet of that date, the accused persons were examined and then a date was fixed for defense witnesses. The record in the form prescribed u/s 263 of the Code shows in the column prescribed for recording the plea of the accused and his examination, if any, the accused pleaded not guilty, and it is stated that they would file a written statement. Therefore, on a reference to the order-sheet of the 20th August, 1926, and to the form prescribed under s 263 of the Code, it is clear that the accused were examined under the provisions of Section 342. What the nature of the examination was is not stated; but in astrometry trial, under the provisions of Section 364, it is not necessary for the Magistrate to take down the questions and answers in detail and there is nothing in this case to show that the examination of the accused persons in this case was not a proper examination as prescribed by Section 342 of the Code.

Reliance has been placed by learned Counsel for the petitioners upon the decision in Blackshear Singh v. Emperor 65 Ind. Cas. 546 : 3 P.L.T. 322 : 23 Cri.L.J. 114 : AIR 1922 Pat. 5 where it was held that a written statement filed by an accused person cannot take the place of his examination u/s 34"J and that the procedure laid down for warrant cases applies though the trial is a summary one u/s 242 and that it is, therefore, mandatory upon the Magistrate to examine the accused u/s 342 even in a summary trial of warrant cases. The correctness of this proposition is not challenged and nobody denies that even in a summary trial the Magistrate is bound to examine the accused u/s 342. The question is whether he is bound to record the examination as provided for in Section 364 of the Code. That section itself says that it is not necessary for the Magistrate in a summary trial to record the examination in detail. Nothing has been shown in this case that the examination was not a proper examination.

This application is dismissed.

Allanson, J.

I agree.