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In Re Vithaldas Bhurabhai - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 72 of 1928
Judge
Reported inAIR1928Bom347; (1928)30BOMLR957
AppellantIn Re Vithaldas Bhurabhai
DispositionApplication dismissed
Excerpt:
.....that section 342 does not apply to proceedings under section 488. there is a ruling of the calcutta high court in bachai kalwar..........petitioner has contended that the word 'accused' in section 342 is not confined to the case of a person accused of an offence and has referred us to various sections of the criminal procedure code, where such a construction might give rise to inconvenience. even assuming that the word 'accused' is sometimes used in the code in a wider sense than a person accused of an offence, still it seems to me perfectly clear that section 342 does not apply to a case under section 488 of the code. the latter part 01 sub-section (1) of section 342 speaks of the accused being questioned generally in the case 'after the witnesses for the prosecution have been examined and before he is called on for his defence.' those words are appropriate to the case of an enquiry or a trial in regard to an offence.....
Judgment:

Fawcett, J.

1. The only legal point taken in this application is that the Magistrate ought to have examined the petitioner under Section 342 of the Criminal Procedure Code and that his omission to do so has vitiated his proceedings.

2. Mr. Shah for the petitioner has contended that the word 'accused' in Section 342 is not confined to the case of a person accused of an offence and has referred us to various sections of the Criminal Procedure Code, where such a construction might give rise to inconvenience. Even assuming that the word 'accused' is sometimes used in the Code in a wider sense than a person accused of an offence, still it seems to me perfectly clear that Section 342 does not apply to a case under Section 488 of the Code. The latter part 01 Sub-section (1) of Section 342 speaks of the accused being questioned generally in the case 'after the witnesses for the prosecution have been examined and before he is called on for his defence.' Those words are appropriate to the case of an enquiry or a trial in regard to an offence alleged to have been committed by the accused. They are entirely inappropriate to the case of proceedings under Section 488, which are more of a civil than a criminal nature, as has seen pointed out in Rozario v. Ingles I.L.R (1893) Bom. 468 and Ponnammal, In re I.L.R (1892) Mad. 234. The obvious reason for the provisions of Section 342 is the fact that a person accused of an offence cannot give evidence on oath in support of his own case, whereas a person against whom proceedings are instituted under Section 488 is permitted to give evidence on oath on his own behalf, and has a full opportunity of being heard as if he were a party in a civil suit, Therefore I am clearly of opinion that Section 342 does not apply to proceedings under Section 488. There is a ruling of the Calcutta High Court in Bachai Kalwar v. Jamuna Kalwarin (1924) 25 L.J. 1091 to the same effect. As there pointed out, Section 488 has been amended in 1923, so as to strike out the reference that formerly existed to 'the accused'; and this supports the view that I have taken. Therefore, in my opinion, there is no adequate ground for our interfering in revision and I would dismiss the application.

Mirza, J.

3. I agree.


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