Norman Macleod, Kt., C.J.
1. The accused was charged before the First Class Magistrate in the Nasik Sub-Division with having committed an offence under Sections 352, 504 and 506 of the Indian Penal Code. The trial commenced on April 16, 1924, when one witness for the prosecution was examined. On April 25, two more witnesses for the prosecution were examined and then the accused was questioned generally. To the question whether he wished to further cross-examine the prosecution witnesses, he said 'Yes'. He was also asked if he had any witnesses, and he gave the names of certain persons he wished to call as witnesses for the defence. On the same day a charge was framed under the three sections abovementioned. On May 2, the prosecution witnesses who had previously been examined were cross-examined. The accused was not questioned further and he entered on his defence. One witness for the defence was examined and cross-examined. On May 20, 1924, another witness for the defence was examined, and on May 21, 1924, judgment was delivered convicting the accused and sentencing him to pay a fine of Rs. 50, or to suffer two weeks' rigorous imprisonment. He, thereupon, made an application to this Court in revision, and the fourth ground on which he complained of the proceedings in the lower Court was as follows : 'That the learned Magistrate has erred in law in not getting an explanation from the accused as to what was deposed against him by the prosecution witnesses in their cross-examination and this omission to examine the accused vitiates the trial and conviction.'
2. Now the procedure to be followed in warrant cases is prescribed by chapter XXI of the Criminal Procedure Code. Under Section 254, at any previous stage of the case even before the whole of the evidence for the prosecution has been taken, the Magistrate is competent to frame a charge against the accused. Under Section 255 (1), the charge will then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make, and under Section 256 if the accused claims to be tried he shall be required to state at the commencement of the next hearing of the case, or if the Magistrate for reasons to be recorded in writing so thinks fit forthwith, ask the accused whether he wishes to cross-examine any, and if so, which, of the witnesses for the prosecution whose evidence has been taken If he says he does so wish, the witnesses named by him shall be re-called and, after cross-examination and re-examination (if any), they shall be discharged. The evidence of any remaining witnesses for the prosecution shall next be taken, and, after cross-examination and re-examination (if any) they also shall be discharged. The accused shall then be called upon to enter upon his defence and produce his evidence.
3. It is, therefore, contemplated by these provisions that the Magistrate can frame a charge although the prosecution case is not complete, and if he does so, and the accused claims to be tried, he is bound to ask the accused whether he wishes to cross-examine any of the prosecution witnesses who have already been called. If the accused states that he wants to cross-examine any of those witnesses, those witnesses must be brought back to the Court so that they may be cross-examined.
4. It is also contemplated that in addition to such cross-examination, further witnesses may be examined for the prosecution, and if such further witnesses are produced, they shall be examined, cross-examined and re-examined. Then the prosecution case is complete and the accused shall be called upon to enter upon his defence and produce his evidence.
5. Section 342 deals with the power of Magistrates to examine the accused. The Court may, at any stage of any inquiry or trial, without previously warning the accused, put such questions to him an the Court considers necessary for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him. That power is discretionary. In addition the Court is bound, for the purpose aforesaid, to 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. In my opinion there can be no difference in meaning between the words 'called upon to enter upon his defence' and 'called on for his defence ' It has been contended that the examination of the accused generally on the case as required by Section 342 can legally take place so as to fulfil the conditions of the section any time before the defence commences, so that in this case where the accused was examined after the two prosecution witnesses had been examined, but before the charge was framed, before the prosecution witnesses had been cross-examined, before any other witnesses the prosecution might wish to call had been called, there was an examination according to the provision of Section 342. In support of that contention we have been referred to the Full Bench decision of the Madras High Court in Varisai Rowther v. King-Emperor I. L. R. (1922) Mad. 449. An opposite view has been taken by the High Court of Calcutta in, Dibakanta Chatterjee v. Gour Gopal Mukherjee I. L. R. (1923) Cal. 939, which was decided some months after the Full Bench decision of the Madras High Court. Unfortunately the Madras decision was not either reported at the time when the Calcutta case was decided, or was not placed before the Court. However that may be, the point seems to be an extremely simple one. The Code intends that the accused shall be given an opportunity of explaining any circumstances appearing in the evidence against him That must mean the whole of the evidence against him, and any examination under Section 342 before that evidence is closed cannot possibly fulfil the conditions of the section.
6. With respect I entirely agree with the opinion of Rankin J. expressed in Dibakanta Chatterjee v. Gowr Gopal Mukherjee that the word 'examined' in Section 342 must include cross-examination and re-examination and cannot be taken as including only those answers which a witness gives to questions put to him in the first instance by the prosecuting counsel or pleader. In my opinion the stage in the trial prescribed by Section 342 when the accused has to be questioned generally on the case for the prosecution is after the prosecution evidence is complete and before he is called upon enter on his defence. The obligation imposed by Section 256 on the Magistrate to ask the accused whether to cross-examine the prosecution witnesses is quite distinct from the obligation imposed by Section 342 to question the accused generally for the purposes mentioned therein.
7. In my opinion, therefore, the Magistrate has not complied with the provisions of Section 342, Criminal Procedure Code. It has been previously decided by this Court that the omission to examine the accused under that section vitiates the trial, and the same result must follow if the accused has been examined before the stage in the trial prescribed by the section has been reached. We could make the order, as was made in the case I have referred to in the Calcutta High Court, directing the Magistrate to resume the trial from the point where he fell into error. But considering the particular circumstances of the case, the fact that if we do so, we would have to send back the accused for trial for the third time, and the fact that the offence is not a very serious one, we think there is no reason why the accused should be put on his trial again. We, therefore, set aside the conviction and direct the fine and the process fee, if paid, to be refunded.
8. I agree with the order proposed and the grounds upon which it is based. The question for our decision is the interpretation of Clause (1) of Section 342, Criminal Procedure Code. That section lays upon the Court the duty of examining the accused person generally for the purpose of giving him an opportunity of explaining any circumstances appearing in the evidence against him, and the point which we have to decide is up to what stage of the case does that duty laid upon the Court persist. Now the section says that such examination shall for the purpose aforesaid be made after the witnesses for the prosecution have been examined and before the accused is called on for his defence. That examination must, therefore, come immediately between the two stages so indicated. It seems, therefore, to me that up to the stage indicated by the words 'before the accused is called on for his defence,' it is obligatory on the Magistrate to question the accused as regards any circumstances appearing against him, and, therefore, as regards any evidence which may have been recorded up to that, point.
9. Therefore we have to determine when that stage is reached, and if reference is made to Section 256, I think, no doubt can be felt that that stage is not reached until all which is prescribed by that section has been completed. If then under that section the accused exercises his option to recall the witnesses or any of the witnesses for the prosecution for cross-examination, he has not reached the stage which the section defines by the words the accused shall then be called upon to enter upon his defence and produce his evidence. In my opinion it is impossible to make any distinction between the words so used in Section 256 and similar words before the accused is called upon for his defence in Section 342.
10. If that is the correct view of the law, it follows that in the present case the Magistrate by failing to question the accused, after he had exercised his option to cross-examine the prosecution witnesses, failed to discharge the duty which the Jaw has laid upon him by the imperative words of Section 342. Now this Court has held that a failure to comply with the provision of Section 342 is an error which vitiates the proceedings, and it would, therefore, follow that the conviction could not be sustained. That being my view of the scope of the relevant sections, I concur in holding that the trial is bad.