1. This is an appeal preferred by the State of Assam under Section 417, Criminal P. C., against an order of acquittal passed by the learned First Class Magistrate of Gauhati in G. R. Case No. 2085 of 1946 in which he acquitted one Dilip Kumar Chatterjee of the offence of criminal breach of trust under Section 408, I. P. C.
2. As we propose to order a re-trial, it is not necessary to set out the facts of the case. We find that the Trying Magistrate has displayed a complete ignorance of the meaning of Section 342, Criminal P. C. The only question put by the learned Trying Magistrate to the accused was: 'What is your reply to the charge brought against you to the effect that you misappropriated money of Railway Company?' The answer was: 'I am innocent.' If the learned Magistrate had taken care to refer to Sections 405 and 408, I. P. C., he would have realised that the points for determination in a case in which an accused person is sent up for trial under Section 408, I. P. C. are--(1) whether the accused was a clerk or servant; (2) whether in such capacity he was entrusted with property or had dominion over the property, (3) whether the accused dishonestly misappropriated or converted to his own use that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust or wilfully suffered any other person to do so.
3. The lack of appreciation of the full implications of the provisions of Section 342, Cr. P. C. has resulted in a wholly unsatisfactory judgment--a judgment which cannot be properly regarded as a judgment, whether of acquittal or conviction.
4. Recently we had had occasion in--'Nirmal Prasad v. State', AIR 1952 Assam 2 (A) to remand the case for retrial--a case in which the learned Magistrate had also failed to appreciate the meaning of Section 342, Criminal P. C. Magistrates in this State will do well to conform strictly to the provisions of Section 342, Criminal P. C., in order to save time and expense. Generally speaking, they should draw the attention of an accused person, when he is being examined under Section 342, Cr. P. C., to the circumstances appearing against him in the evidence of each witness and ask him for an explanation, and not merely ask him 'what is your defence?'
5. We draw the attention of Magistrates and Judges to what we have said in--'AIR 1952 Assam 2' (A):
'When a circumstance appears in the evidence against an accused person--a circumstance which the Court considers vital--it is the duty of the Court under Section 342 of the Code of Criminal Procedure, to call the accused's attention to the circumstance and call for an explanation; omission to do so is a departure from the statutory rule, and a conviction based on the accused's failure to explain what he was never asked to explain, is bad in law.'
These observations apply with equal force to an acquittal where it is based upon rejection of evidence on surmises which might prove to be quite futile if a real attempt had been made by the Magistrate to conform to the provisions of Section 342, Criminal P. C.
6. In the case before us, the entire judgment of the learned Magistrate is vitiated by reason of the fact that the accused person was not asked to explain the evidence of certain documents which the prosecution alleged the accused had admitted and signed documents which prima facie tend to show that he had failed to account for a sum of Rs. 10000/- odd in respect of which he was sent up for trial under Section 408, I. P. C.
7. The result is that we set aside the acquittal and remand the case for re-trial according to law by another Magistrate having jurisdiction.
8. I agree.