Sukhdeo Prasad Tiwari and Another vs Emperor

Rowland, J.—The petitioners have been convicted u/s 352, I.P.C., and fined Rs. 15 on an allegation that they assaulted the complainant. The facts are concluded by the findings of the Courts below; but two objections are taken to the regularity of the proceedings. It is said that the accused was not examined in accordance with the requirements of Section 342, Criminal P.C. It is also sad that the Magistrate at the outset failed to comply with the requirements of Section 242, Criminal P.C., under which in a summons case when the accused appears or is brought before the Magistrate the particulars of the offence of which he is accused are to be stated to him and he is to be asked if he has any cause to show why he should not be convicted. It is said that each of these provisions of law is what is called mandatory and that non-compliance vitiates the whole trial.

The objection as to non-compliance with the provisions of Section 342 rests on a series of decisions of this Court beginning with Raghu Bhumij v. Emperor A.I.R.1920. Pat. 471 which was followed in Fatu Santal v. Emperor A.I.R.1921.Pat. 109 in which Sessions trials were held to be bad if there had been no examination of the accused. The principle was held applicable to warrant and summons cases: Gulam Rasul v. Emperor A.I.R.1921. Pat. 11 and in Mitarjit Singh v. Emperor A.I.R.1922. Pat. 158 it was held in a warrant case that it was not enough that the accused should have been examined during the course of the trial. It was essential that the examination should take place at the point at which the Code directs it to be done, that is to say, after the examination of the prosecution witnesses and before he is called upon for his defence. In all these cases the trials were held to be bad irrespective of whether the accused had been prejudiced or not. But in Mir Tilawan v. Emperor A.I.R.1922. Pat. 388 where at the point where the accused should have been examined they filed written statements instead, it was held that the accused had not been prejudiced, that there had been no miscarriage of justice and that there was no reason to interfere in revision.

Consistently with this last decision, in Bhagwat Singh v. Emperor A.I.R.1925. Pat. 378, where it was contended that it was not enough to ask the accused whether they wished to make any statement but they should have been questioned with regard to the several particulars appearing in the evidence against them, it was held that as the accused in answer to the first question put to them filed written statements and obviously did not intend to give oral answers to any questions, the Magistrate was not bound to continue asking questions. To do so would be useless formality.

Meanwhile similar questions were considered elsewhere and a Full Bench of the Madras High Court in Varisai Rowther v. Emperor A.I.R.1923. Mad. 609, after examining the whole question in detail held that while it was essential that the accused should be examined at some stage of the case, the law was satisfied when the Magistrate questioned the accused generally on the case before framing a charge. The trial was not vitiated by the omission to question the accused generally on the case after all the prosecution witnesses had been further cross-examined. Schwabe, C.J. dissented from the decision in Mitarjit Singh v. Emperor A.I.R.1922. Pat. 158 and overruled a similar decision in In re Madura Muthu Vannian A.I.R.1922. Mad. 512.

This Full Bench decision of the Madras High Court was approved and the decision in Mitarjit Singh v. Emperor A.I.R.1922. Pat. 158 was dissented from in Mohiuddin v. Emperor A.I.R.1925. Pat. 414. Bucknill, J. puts the position briefly thus:

I do consider that, provided the accused has in fact had a reasonable and substantial opportunity of exercising the privilege accorded to him by the provisions of Section 342, that is of either orally or in writing saying what he wishes to say in explanation of what has been alleged against him, a technical failure or omission in the procedure ought not to be regarded as rendering a trial wholly nugatory. Should such omission or failure be shown to have prejudiced the accused, the matter of course assumes a different aspect and can and should be remedied; but not, in my view, otherwise.

Mullick, J. examined the position in more detail. He held that in the case before him there had been no evasion of the provisions of Section 342 and said:

In any event the objection is based on the purest of technicalities and has neither principle nor experience to support it. Principle requires that the accused shall not be convicted without being given an opportunity of explaining the allegations against him; experience shows that judicial questioning must not become inquisitorial. If these essentials are secured, the trial cannot be impeached.

His Lordship then referred to the successive Criminal Procedure Codes in this country and to the principles of English as distinguished from continental European law, concluding that

The object of the Legislature is to give the prisoner every opportunity to lay his case before the Court and to protect him against anything in the nature of cross-examination by the Judge. What is necessary is that he should be given an opportunity before entering upon his defence as in England to state generally what are the real facts in reference to the complaint. If he is defended or if he files a written statement, judicial questioning will generally add but little to the Court''s knowledge, nor will a violation of any rule as to the stage at which he is to be examined make much difference. If he has not been prejudiced, the error ought not to vitiate the trial.

To the argument that an express violation of the terms of the statute must always vitiate the trial, based on Subrahmania Ayyar v. Emperor 25 Mad. 61, Mullick, J. replied that the observations of the Privy Council in that case must be read with reference to the particular facts before them. This decision has been generally followed in cases of the Patna High Court ever since. In Sheodatt Roy v. Emperor A.I.R.1929. Pat. 64 and objection was taken to a conviction in a summons case because it was said that the Code contemplated an examination of the accused on two occasions, that is to say, when he is first brought before the Magistrate as provided'' by Section 242 and another examination after the closing of the evidence u/s 342. Wort, J. said that assuming for the moment that no second examination was held, no kind of prejudice was shown and the conviction could not be disturbed on this ground.

I have examined the legal position with reference to Section 342 in some detail because these decisions have settled the principles to which a Court should have regard in dealing with a technical objection of this nature. As a matter of fact, in this case reference to the record shows that in fact accused were examined after the prosecution witnesses had been heard and that Section 342 of the Code was obeyed. But the principles which emerge from the above series of decisions are applicable also to the other objection which remains to be considered, namely, the contention that a trial is bad for want of explaining at the outset to the accused the particulars of the offence.

The petitioner refers to Gopal Krishna Saha and Others Vs. Mati Lal Singh, in which a conviction was set aside holding that the omission to comply with the provisions of Section 242 was an illegality vitiating the trial. This case has been followed by Varma, J. in Bhubaneshwar Prasad v. Emperor A.I.R.1936. Pat. 501 but was not followed by James, J. in Nakul Mandal v. Emperor Crim. Revn. No. 675 of 1935, decided on 21st January 1936. The Calcutta decision deduces from Subrahmania Ayyar v. Emperor 25 Mad. 61 a universal rule that an omission to comply with an express provision of the Code as to the mode of trial vitiated the whole trial. The later Privy Council decision in AIR 1927 44 (Privy Council) shows that the rule cannot he so broadly stated.

The judgments in Subrahmania Ayyar v. Emperor 25 Mad. 61 and in AIR 1927 44 (Privy Council) have this in common that their Lordships looked to the object; intended to be served by the statutory provision whose breach was complained of, and asked whether that object was in danger of being defeated. This point of view agrees with that taken by this Court in Mohiuddin v. Emperor A.I.R.1925. Pat. 414, and it is in this light that we should consider the provisions of Ch. 20, Criminal P.C., dealing with the trial of summons cases. In a summons cases u/s 243 it is permissible to convict an accused without taking any evidence on his own admission if he shows no sufficient cause why he should not be convicted.

Before this can be done, it is required by Section 242 that the particulars of the offence be stated to the accused and he shall be asked if he has any cause to show against the conviction. If therefore the Magistrate proceeded to convict u/s 243 without first stating the particulars of the offence and bearing any cause which the accused had to show, there would be a manifest violation not only of what is ordered by the words of the statute but of the fundamental principle which as explained in Mohiuddin v. Emperor A.I.R.1925. Pat. 414

requires that the accused shall not be convicted without being given an opportunity of explaining the allegations against him.

On the other hand, if the Magistrate proceeds to hear evidence, it is difficult to see that the object of the statute can be imperilled provided that after hearing the complainant and his witnesses the Magistrate gives the accused the opportunity for which Section 342 provides of putting forward his answer and his explanation. I am of opinion that in a summons case omission to explain the particulars of an offence to the accused u/s 242 and to ask him to show cause at that stage is not (in cases in which the accused is defended and pleads not guilty) an illegality vitiating the trial provided of course that no prejudice can be shown to have been caused to the accused and that the accused has in due course been examined u/s 342.

I do not mean to say that it does not matter whether the provisions of Section 242 are complied with or not; they ought to be complied with and. Magistrates should take care that the record on its face establishes that there has been a full compliance; with the law only because no Magistrate can tell what will be the opinion of a superior Court as to whether the accused has been prejudiced by the omission in the particular case.

In the proceedings before me, the Magistrate reports that the particulars of the offence were explained to the accused, though this was not noted in the order, sheet.

I accept this assurance and feel no doubt that in future the Magistrate'' will be careful to see that all proceedings are fully noted in the order, sheet so that no such question may arise. The Rule is discharged.