1. This is a reference by the Sessions Judge of Bulandshahr, against an order of a Magistrate convicting the accused under Section 379, Penal Code, and sentencing them to a fine of Rs. 50 each. So far as this case is concerned the note made by the Magistrate under the heading 'plea of accused and his examination, if any,' was 'accused all plead not guilty.' There were no further particulars of any statement that the accused might have made. The learned Sessions Judge has therefore inferred that the accused were not at all questioned generally as is required by Section 342, Criminal P.C. The learned Sessions Judge came to the conclusion that non-compliance with Section 342, Criminal P.C., which was applicable to the summary trial, was a fatal defect.
2. There has been some difference of opinion as to whether the latter provision of Section 342(1) applied to summons cases just as it applied to warrant cases. With the exception of the Madras and Rangoon High Courts it appears that all the other High Courts, namely, of Calcutta, Bombay, Lahore and Patna as well as Allahabad have been of the opinion that Section 342 applies to summons cases just as well as to warrant cases. The contention that the words 'before he is called on for his defence' occurring in Section 342 do not occur in Sections 242, 243, 244 and 245, Chap. 20, does not appear to have much force because the exact words have not been repeated even in Section 289 though the words used therein are somewhat similar. No doubt there is provision in Chap. 20 for questioning and examining the accused, but that does not imply that Section 342 is wholly inapplicable. The last mentioned section occurs in Chap. 24 which has the heading 'general provisions as to inquiries and trials.' There is therefore no reason to presume that the provisions in this chapter are inapplicable to summons cases. Section 364 provides that when an accused is examined the whole of his examination including every question put to him and every answer given by him shall be recorded in full. But Sub-section 4 of that section lays down that nothing in this section shall be deemed to apply to the examination of an accused person under Section 263 which applies to a summary trial. It is therefore obvious that even in the case of a summary trial, and much more so in a summons case, the examination of an accused is necessary although the recording of the whole of such examination is dispensed with in the case of summary trials.
3. It may well be that there is much to be said in support of either view, but the preponderance of opinion has been in favour of the view that Section 342 applies both to summons and warrant cases. In Khacho Mal v. Emperor 1926 All. 358, Daniels, J., held that Section 342 has always been held to be applicable to summons cases as well as to warrant cases, and the learned Judge applied the provisions of that section to the summons case out of which the reference before him had arisen. There are several other cases in which the same opinion has been expressed, but they may be distinguished on the ground that they refer to warrant cases : see, Bechu Chaube v. Emperor 1923 All. 81, Murat Singh v. Emperor 1928 All. 266 and Emperor v. Jhabbar Mal 1928 All. 222. As it is Only fair to an accused person that he should be questioned generally on the case for the purpose of enabling him to explain any circumstances appearing in the prosecution evidence against him, it is reasonable to hold that Section 342 applies to all cases.
4. Section 244 merely requires that the Magistrate should hear-an accused and take all such evidence as he produces in his defence; and so hearing the accused may not be exactly questioning him generally on the case in order to enable him to explain any circumstances appearing against him. In this view of the matter we are of opinion that the view expressed in this Court should not be departed from when it is supported by the opinion expressed in so many other High Courts. We accordingly hold that the provisions of Section 342 apply to summons cases as well. The position as regards summary trials is in our opinion simpler. Section 342 does not itself require that the answers given by the accused to the questions put to him should be reduced to writing. But far warrant and summons cases Section 364 requires that the whole of the examination of an accused person should be so recorded in the form of questions and answers. As already pointed out this recording of the statement is expressly dispensed with in the case of summary trials. It would therefore, follow that the mere fact that the statement of the accused has not been recorded by the Magistrate in a summary trial would not show either that the accused was never questioned at all or that the omission to record his statement is fatal.
5. The procedure prescribed for summons cases applies under Section 262 to summary trials as well. Section 263 which applies to summary trials requires that the Magistrate shall enter certain particulars including the plea of the accused and his examination (if any). It therefore follows that it is the duty of the Magistrate to record not only the plea of the accused, but also his examination, if any. The words 'if any' do not imply that it is optional to the Magistrate to examine the accused or not, but merely imply that where the, accused has made a statement, particulars of his examination, should be; noted. But that is not the same thing as recording his examination in full.
6. In this particular case, we cannot be the first place be absolutely certain that the accused were never questioned at all, particularly as we find that in the connected case which was decided on the same date an abstract of their statements was actually recorded, but the fact remains that particulars of the examination, if any had taken place, were not recorded by the Magistrate, but only the plea of not guilty was noted. But such a defect is at the most a mere irregularity which can be cured under Section 537, Criminal P.C., unless the defect has in fact occasioned a failure of justice. It has been held in the cases decided by this Court quoted above, that the defect, of non-compliance with the provisions of Section 342 is a mere irregularity which is not fatal to the trial unless the accused has been prejudiced.
7. In the case before us the question was whether the accused had cut down certain trees belonging to the complainant who was the zamindar. After the complainant's evidence had been closed the accused, after pleading that they were not guilty, produced evidence to show that the trees had not been cut down by the accused, but were actually cut down by the zamindar himself. This evidence has not been believed. There was no suggestion in the cross-examination of the witnesses for the prosecution nor in the defence evidence that the trees belonged to the accused themselves or even to any other party. The learned Magistrate expressly noted in his judgment that it was not contested on behalf of the accused that the trees belonged to the zamindar. We are therefore unable to agree with the learned Sessions Judge that there was a possibility of the accused denying the ownership of the trees if they had been specifically questioned about the matter. We must therefore hold that the accused have in no way been prejudiced by either the omission to question them generally on the case after the prosecution evidence had been closed or by the omission to record the particulars of their examination.
8. The learned Sessions Judge is clearly wrong in thinking that a sentence of fine only was illegal. We however agree with him that the sentence of fine of Rs. 50 on each of the four accused for the offence of cutting down two babul trees worth Rs. 10 is rather severe. We accordingly accept this reference in, part and upholding the convictions of all the accused reduce the fines imposed upon them to Rs. 15 each; in default of payment of the fines they will undergo two weeks' rigorous imprisonment each. Out of the total amount so realized Rs. 10 will be paid to the complainant as compensation.