Sitaram Gope vs Emperor

Pande, J.—The petitioner was convicted Tinder Section 411/75, Penal Code, and sentenced to rigorous imprisonmnent for two years by the Subdivisional Magistrate of Madhubani. An appeal against that order was dismissed by the Additional Sessions Judge of Dar-bhanga, who heard the appeal.

It appears that the case was originally tried by a Magistrate with second class powers at Madhubani on the charge u/s 411, Penal Code. On the completion of the trial, it was discovered that the accused had a previous conviction u/s 379, Penal Code. Therefore, under the provision of Section 349, Criminal P.C., the trying Magistrate submitted the record to the Subdivisional Officer as in the opinion of the trying Magistrate the accused was liable for more severe sentence than he was competent to award. When the record of the case was submitted to the Subdivisional Magistrate be resummoned three of the prosecution witnesses for further examination and also summoned one new witness. These witnesses were examined and cross-examined.

The accused was examined u/s 342, Criminal P.C., on the completion of the prosecution evidence in the Court of the Magistrate with second class powers. But when fresh evidence was taken by the Sub-divisional Magistrate the accused was not asked anything after further examination of the prosecution witnesses. It is contended on behalf of the petitioner that the failure of the Subdivisional Magistrate to examine the petitioner after fresh evidence was taken in the Court of the Subdivisional Magistrate was an illegality and not an irregularity which could be cured under the provisions of Section 537 and, therefore, the conviction of the petitioner was illegal.

In support of this contention. Mrs. Dharamshilla Lall cited two Division Bench decisions of this Court in Gulam Rasul v. Emperor AIR 1921 Pat. 11 and Mitarjit Singh and Others Vs. Emperor, . Those oases are authority for the proposition that omission to examine the accused u/s 342, Criminal P.C., vitiates the trial. Mr. S.N. Banerji, who appeared for the Crown, contended that the present case is distinguishable from the cases cited as the petitioner in the present case was actually examined by the Magistrate in the first Court, and the omission to examine the accused again in the Court of the Subdivisional Magistrate was at best an irregularity.

In support of this contention he referred to the decision of a Division Bench of this Court in Mohiuddin v. Emperor AIR 1925 Pat. 414. In that case the position was quite different. The accused was examined in the trial Court but on appeal the appellate Court remitted the record to the lower Court for taking fresh evidence and the record was returned to the appellate Court with the fresh evidence. It was contended in that case that the accused should have been re-examined after examination of the witnesses for the prosecution was taken on remand. His Lordship Mullick J. referring to the provision of Section 428, Criminal P.C., pointed out that there was no such provision and observed that as examination of witnesses after remand may be made even in the absence of the accused, the provisions of Section 342 do not apply to it. But, in the present case, the trial of the case was not concluded by the Magistrate with second class powers. The trial was actually concluded in the Court of the Subdivisional Magistrate and when fresh evidence was taken the accused should have been re-examined and asked what his defence was and whether he would adduce evidence in support of his defence.

Therefore the decision in Mohiuddin v. Emperor AIR 1925 Pat. 414 is, in my opinion, not applicable to the facts of the present case. Further this case was considered by a Division Bench of this Court recently in Feroze Kazi and Others Vs. Emperor, . In that case their Lordships reiterated the principle laid down in the earlier decisions of the two Division Bench cases referred to above that the failure to comply with the provisions of Section 342, Criminal P.C. is an illegality, which vitiates a trial, and it is not cured by Section 537, Criminal P.C. Referring to the decision in Mohiuddin v. Emperor AIR 1925 Pat. 414 their Lordships (Harries C.J. and Meredith J.) observed as follows:

It is unnecessary in this case to decide whether the failure to observe the provisions of Section 342, Criminal P.C., is merely an irregularity curable u/s 537 or is an illegality which vitiates the whole trial and which can never be cured. Even if what I have pointed out in this case only amount to irregularities, they are of such a serious nature that they must he held to have occasioned allure of justice.

Thus on the authorities, it is clear that the omission to examine the accused u/s 342, Criminal P.C., is an illegality which vitiates the trial. Such examination is, in my opinion, imperative under the provision of the Section even though the accused may have been previously examined under that section after the prosecution evidence that stood against him at that time. It follows that the conviction of the accused in the present case is vitiated by the omission to observe the mandatory provision of Section 342.

Therefore, the conviction and sentence passed against the petitioner must be set aside and the same remanded for rehearing from the stage where the illegality commenced.