1. It is to be regretted that the learned Sessions Judge before whom, assisted by assessors, the appellants were tried, omitted to follow the procedure prescribed in imperative terms by the provisions of Section 342 of the Code of Criminal Procedure as to the examination of the accused persons by the Court during their trial. According to those provisions the Court 'shall' question the accused generally on the case after the witnesses for the prosecution have been examined and before he is called for his defence. The term 'shall' makes the duty imposed on the Court mandatory, not discretionary and when we have regard to the object of such examination, specified in the section itself, viz, that the Legislature intended it to enable the accused to explain any circumstances in the evidence against him, it becomes clear that the omission by the Court to perform such duty in a criminal trial must be presumed to have seriously prejudiced the accused. In all criminal matters, the utmost strictness must be observed and forms must be closely complied with where the liberty of the subject is at stake, when from the Statute prescribing those forms it appears that they were pre-soribed by the Legislature in the interests of the accused. We find it impossible to say that the omission by the learned Sessions Judge to examine the accused as required by Section 342 has not prejudiced him or has not led to a miscarriage of justice. To say that there has been no prejudice or no miscarriage of justice in the absence of accused's answer given on examination under Section 342 is to beg the question.
2. Nor can we hold that the omission is a mere irregularity which the accused has waived. In a criminal trial we are bound to draw no inference of waiver against an accused person, especially in the case of omission by the Court to perform a duty imposed on it in express terms by the Legislature in his interest unless the accused waived it expressly.
3. The conviction and sentence must therefore be quashed. The question is whether we should direct a re-trial of the accused or whether the trial that he has had should be proceeded with from the point where the case for the prosecution ended. But upon the whole we think that it is expedient in the circumstances of this case that there should be a re-trial.