Norman Macleod, C.J.
1. This is an appeal by Government against an order of acquittal passed by the Sub-Divisional Magistrate, with appellate powers, of Ahmednagar. The first accused was convicted by the second class Magistrate of Nagar Taluka under ss. 457 and 380, Indian Penal Code, and the second accused was found guilty of an offence under Section 411, Indian Penal Code. It seems to me that the evidence proves conclusively facts from which the prop inference to be drawn was that the second accused must have had reasonable belief that the property entrusted to him by the first accused was stolen property. The Sub-Divisional Magistrate thought, however, that there was a defect in the trial which entirely vitiated the proceedings, so that the conviction and sentence passed on the second accused should be set aside. He says in his judgment:
Unfortunately accused No. 2 was not asked by the learned Magistrate to explain this conduct and his knowledge about the things shown by him as was necessary under Section 342, Criminal Procedure Code. The pleader for the defence very strongly urged that this omission by the learned Magistrate left no chance to accused No. 2 to explain his conduct and knowledge, and has, therefore, vitiated the trial, as the omission occurred though the pleader requested the learned Magistrate to put specific questions about these points to his client. Though there is no record of the Court's refusal and the pleader's urging this point, I do not hesitate to accept the force of the argument.
2. The accused was asked in the trial Court:--Did you hear the evidence recorded for the prosecution?
Questioned--Have you anything to say with regard to it?
3. He was also asked--When were the currency notes of Rs. 200 handed over to you by accused No. 1? To which he replied--I do not remember the exact day but after accused No. 1 handed them over to me they remained with me for a day and I gave them to Papu the next day. So it does appear that at least one particular question was put to the second accused. But if the argument is correct that under Section 342 of the Criminal Procedure Code the Court must question the accused on the evidence, and that the genenal question whether the accused wishes to otter explanation of any of the evidence which has been given against him. is not sufficient, then it is difficult to see how any general directions could be laid down as to the particular points on which questions ought to be put by the Court so as to comply with the provisions of Section 342. As I read that section, it is incumbent on the Court to ask the accuaed generally whether he wishes to offer an explanation of any of the evidence which has been given against him, and if the Court does so. that would be a sufficient compliance with the Section But the section also gives the Court power to put specific questions to the accused with regard to any of the evidence adduced for the prosecution. Without Section 342 the Courts would have no such power. But it is left entirely to the discretion of the Magistrates and Judges whether they should, after having put the general question, ask specific questions on particular points in the evidence. Presiding in the Sessions Court, I have generally refrained from putting specific questions to the accused, as whether he answered or refused to answer such questions, there was always the fear that he might prejudice himself with the Jury. In my opinion, therefore, the Sub-Divisional Magistrate was quite wrong in thinking that there was a serious defect in the trial. I also cannot agree with him that there was not sufficient evidence to convict the second accused. However after this period of time, we do not think, it desirable that the accused should be sent back to jail. So while we set aside the order of acquittal and direct that the order of conviction and sentence should stand, we reduce the sentence of imprisonment to the period already suffered; and retain the fine directed to be paid by the order of the trial Court.