Ponnusami Odayar and Others vs Ramasami Thathan

Walter Salis Schwabe, K.C., C.J.—This Criminal Revision case has been referred to the Full Bench on the question whether in summons

cases the provisions of Section 342 of the Code of Criminal Procedure, are to be applied, that is, is the Court bound, for the purpose of enabling

the accused to explain the circumstances appearing in the evidence against him, to question him generally on the case after the witnesses for the

prosecution have been examined and before he is called on for his defence. The inconvenience of this course is manifest in view of the pro visions

of Section 364 of the Code of Criminal Procedure which re quire the taking down of any such question in full in the language in which the accused

is examined, or, where that is not practicable, in the language of the Court or in English, and that the record shall be shown or read to him and, if

necessary, interpreted. The great majority of summons cases are of a petty nature and a strict application of the section must necessarily involve a

consumption of a large amount of judicial time. We are reliably informed that it would involve a considerable increase in the Magistracy and that, in

fact, the section has in practice in this Presidency not been treated as applying to summons cases. In Madras there is no authority on the point

except that in two recent cases single judges have felt themselves bound to hold that the section does apply by reason of the decisions of the

Benches of other Courts referred to below. In other Courts there is considerable weight of judicial authority in favour of the application of the

section. In Emperor v. Fernandez ILR (1921) B. 672, Shaw and Crump, JJ., gave a direct decision on the point and it was followed in Emperor v.

Gulabjan I.L.R.(1922) B. 441, by Macleod, C.J. and Shaw, J., the former pointing out the inconvenience and suggesting legislation as a remedy.

In Raghu Bhumji v. The King Emperor (1920) 5 Pat. L.J. 430, in which the point was unnecessary for decision as it was a Sessions Case, Sultan

Ahmed, J., held that the application of Section 342 was obligatory in Sessions Cases and expressed his opinion that it did not apply to summons

cases for reasons which I will refer to later, Mullick, J., holding that the section was not obligatory in Sessions Cases stated that he failed to see

any difference between warrant and summons cases. On this case being referred to Jwala Prasad, j., he held that it was obligatory in Sessions

cases and was clearly of opinion that it applied to summons cases. In Ghulam Rasul v. The King Emperor (1921) 6 Pat. L.J. 174 , Adami and

Bucknill, JJ., held that the section applied to summons cases. Emperor v. Fernandez ILR (1921) B. 672, had been reported in the meantime and

the Court simply followed that decision. This case has also been followed by single judges in Lahore in Muhammad Baksh v. Emperor (1921) 65

I.C. 618 , and in Patna mParameswar Lal Mitter v. Emperor (1921) 67 I.C. 616. It is open to this Bench to take a different view and we have to

consider the matter for ourselves, of course, giving due weight to the authorities quoted above. Section 342 is one of the general provisions as to

inquiries and trials, contained in Chapter XXIV, and, being a general provision, it must be applied to all cases, unless the special sections dealing

with particular cases indicate that it is not intended to apply to them, or unless the words of the section itself give such indication. In my judgment,

both these grounds of exception are to be found in respect of Summons Cases. Looking at Section 342 it is a condition that the questioning

directed is to take place before the accused is called on for his defence. The calling on the accused for his defence has a definite meaning both in

sessions and warrant cases under Sections 289 and 256, but when examining Chapter XX containing the provisions applying to summons cases,

the expression is not used. The prisoner in these cases docs not ""enter on his defence"" but the Magistrate is bound ""to hear the accused."" That this

distinction in phraseology is deliberate is clear from an examination of Section 451 relating to the trials of European British subjects which refers, in

summons cases, to a time before he is heard in his defence u/s 244 and, in warrant cases, to a time before he enters on his defence u/s 256. (See

on this point the Judgment of Sultan Ahmed, J., in 5 Patna L.J. at p. 436). In my Judgment, the proper interpretation to be put upon Section 342

by reason of these words k that it is to apply only to those cases where under other sections of the Code the prisoner is to be called on for his

defence. Again Chapter XX provides a complete procedure for the hearing of summons cases. u/s 242 the accused is asked if he has any cause to

show why he should not be convicted; but there is no sort of preliminary enquiry before framing a charge, as is the case in warrant cases, and

before a case is committed to Sessions. Then u/s 244 the Magistrate must hear the complainant and take all such evidence as may be produced in

support of the prosecution and also hear the accused and take all such evidence as he produces in his defence. u/s 245 after taking this evidence

and such further evidence (if any) as he may cause to be produced, and (if he thinks fit) examining the accused he must give his decision. It is

difficult to see where in these sections a formal examination u/s 342 is to come in. It would have to be read in somewhere in Section 244 and it

would be remarkable that, if Section 342 was intended to be applied, to summons cases, the Legislature should not have said at what stage in the

application of Sections 242, 244 and 245 this further formal examination is to take place. I do not feel bound to read the provisions of Section

342, as intervening in the middle of the operation of these sections, and in my Judgment, it has no application to summons cases. It is perhaps

worth observing that in summons cases there is no objection to a Magistrate questioning the accused generally for the purpose of enabling him to

explain the circumstances appearing in the evidence against him, and in complicated cases especially where the accused is not represented by

Counsel, it is a desirable course notwithstanding that it is not obligatory.

As to the other points raised, this Criminal Revision case with this direction will be referred to the Referring Bench for disposal.

Old field, J.

I agree. The authorities referred to in the judgment just delivered seem to me to proceed, implicitly or explicitly, on two assumptions, which with

all respect I cannot follow : that the entry by the accused on his defence, referred to in Section 342 of the Code of Criminal Procedure is

identifiable with the hearing of the accused, referred to in Chapter XX, and that the language used in the section is applicable at all to summons

case procedure. With all deference to my Lord, I am not sure that the separate references in Section 451 to accused being heard in summons

cases and entering on his defence in warrant cases assist the argument. For it is not clear that they correspond with more than the draftsman''s

adherence in 1884, when that part of the Code was amended, to the wording of the other portions now under construction. It is, however, in my

opinion sufficient that the distinction to be inferred from the different wording used in each of those portions can easily be drawn, the hearing of the

accused u/s 244 referring to the general hearing, to which he of his vakil on his behalf is entitled in the course of the trial. His entry on his defence

under summons case procedure takes place earlier, when u/s 242, after the particulars of the offence have been stated to him, he is asked if he has

any cause to show why should not be convicted. But, as the witnesses for the prosecution have not then been examined, there can be no question

then or later of the requirements of section,342 having been fulfilled.

Ramesam, J.

I agree with the judgment of the learned Chief Justice.

Devadoss, J.

I agree with the judgment of the learned Chief Justice.

Coleridge, J

I agree.