1. In this case the Sessions Judge of Thana points out that the Magistrate examined the accused on July 19 and 20, 1927, and that two prosecution witnesses, Govind and Bhikaji, were subsequently examined, but the accused were not further examined in regard to their evidence. He submits that there has, therefore, been an illegality which vitiates the proceedings in accordance with rulings of this Court such as Emperor v. B.N. Gamadia : (1925)27BOMLR1405 . There certainly has not been a compliance with the provisions of b. 342 of the Criminal Procedure Code that 'the Magistrate shall question the accused generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.' This is not a case of mere omission to examine an accused after further cross-examination and re-examination of prosecution witnesses that have already been examined-in-chief before the statement of the accused is taken, as in Emperor v. Gamadia : (1925)27BOMLR1405 ; Varisai Rowther v. King-Emperor I.L.R (1922) Mad. 449, f.b; Dibalkanta Chatierjee v. Gour Gopal Mukherjee (I.L.R 1923) Cal. 939; Emperor v. Bechu Chaube I.L.R (1922) All. 124; and Byrne v. The Crown I.L.R (1922) Lah. 61. That point may possibly need further examination by a Full Bench, in view of the Privy Council decision in Abdul Rahman v. The King-Emperor (1926) L.R. 54 IndAp 96 & 29 Bom. L.R. 813. But, in the present case, as there has been this clear contravention of Section 342, we think that the recommendation of the Sessions Judge should be accepted and the trial held to be illegal from the point where the accused should have been further examined.
2. A question arises whether a re-trial should be ordered, at any rate, from that stage. In regard to this it is to be noted that the Magistrate has in paragraph 4 of his judgment remarked on the somewhat trivial nature of the case, and that he would, in fact, have let off the accused with an admonition under Section 562A of the Code of Criminal Procedure, but for the fact that he thought that there were other persons working behind the curtain against the complainant, He allowed the second accused to be released after an admonition, but he sentenced accused No. 1 to a fine of Re. 20. The Sessions Judge has submitted that in view of the small value of the subject matter of the theft, perhaps it will not be desirable to order a re-trial. We think that in the circumstances a re-trial need not be ordered, and therefore the result will be that the conviction and the fine of Rs. 20 are set aside.