1. This is a revision directed against an order of Sri M.A. Khan, Magistrate First Class, Jajpur, dated 31-12-52, whereby he examined an accused person under Section 342, Cr. P. C., after the examination of the defence witnesses had been completed.
The petitioner is the complainant in a case under Sections 447 and 426 I. P. C. There were five accused persons, of whom the first accused Nakhya-tramalini Dei (.Opposite party 1) is a purdanashia lady. She was being represented at the trial by 'Mukhetear, M. M. Jena, and her personal attendance was dispensed with under Section 205, Cr. P. C. On 17-10-52, the Mukhtear was examined on her behalf. But unfortunately, it appears that he did not sign the statement he made under Section 342.
The case was posted to 30-12-52, for the examination of defence witnesses and some of them were examined on that date. The case came up for arguments on the next day, namely, 31-12-52. On that day, it was brought to the notice of the Court that the Mukhtear had not signed the statement under Section 342, Cr. P. C. It appears that the Mukhtear had died on 11-11-52 and this fact also was brought to the notice of the Court on 31-12-52. It is apparent from these facts, therefore, that the first accused Nakhyatramalini was not represented at the trial when the defence evidence was recorded. The Magistrate accordingly passed the following order:
'After 17-10-52 till yesterday (30-12-52) when the defence witnesses were examined nothing important took place. So, the accused going unrepresented does not matter much. Mukhtear Sri L.B. Das signs her Vakalatnama today and submits a petition under Section 205, Cr. P. C., for her to-day. This is allowed and accepted. Lett him represent her.
Sri L.B. Das, Mukhtear, is examined to-day under Section 342, Cr. P. C. representing the accused Nakhyatramalini Dei under Section 205, Cr. P. C. He declines to adduce any evidence or to recall and examine any of the defence witnesses examined yesterday.'
2. The statement itself is almost the same as was msde by Mukhtear M.M. Jena who had represented the accused Nakhyatramalini earlier till his death on 11-11-1952.
3. The grievance of the complainant, however, is that the procedure adopted by the trying Magistrate in examining the accused a second time renders the trial illegal and vitiates it and, therefore, that order should be quashed.
4. Secion 342, Cr. P. C., enables the Court to 'put any questions to the accused at any stage of an enquiry or trial for the purpose of enabling the accused to explain the circumstances appearing in the evidence against him.' The section is wide in its language and does not limit the power of the Court to examine the accused at any particular stage. The Court can examine him as often as it thinks it necessary to do so, to enable the accused person to explain any circumstances appearing against him in the evidence, the object of the section being to see whether the accused can give an innocent explanation of the facts spoken to against him. There is nothing in the language of the Section which would prevent the Court from, examining the accused even after the defence evidence has been recorded; and even if the statement had not been signed by the Mukhtear it was open to the Court to examine the accused after the defence evidence had been recorded, if anything needed explanation. I am, therefore, unable to find anything illegal in the procedure adopted by the Magistrate.
Even if it can be said that the order passed by him is not in accordance with the strict interpretation of Section 342, Cr. P. C., all that he has done may amount only to an irregularity which is curable under Section 537 of the Code. It was open to the complainant who was represented by pleaders to point' out the irregularity at an earlier stage in the proceeding. Not having done so it appears to me that the objection now taken has no force and the petitioner can have no reasonable cause to complain of any failure of justice having been occasioned by the irregularity of procedure adopted by the Magistrate.
5. Learned counsel for the petitioner relied on the case of -- 'Surendra Lal v. Isamaddi', A. I. R. 1925 Cal 480 (1) (A) in support of his contention that the trial itself is vitiated for the reason that the accused was examined after the defence witnesses had been examined. In that case the accused had not been examined at all till after the defence witnesses were examined. There was thus no compliance at all with the provisions of Section 342, Cr. P. C. In such circumstances their Lordships held that an examination under Section 342, Cr. P. C., is obligatory at the close of the prosecution and before the accused had entered upon his defence.
It is undoubtedly true that the accused must be examined before he is called upon to enter on his defence. But examination and signing the statement are two different matters. If the accused has been examined, then undoubtedly there is sufficient compliance with the provisions of Section 342, Cr. P. C. The failure to append the signature 'is nothing more than an irregularity. Section 364 says that the record shall be signed by the accused and the Magistrate, and non-compliance with the provisions is curable under Section 533, Cr. P. C Such a statement is made admissible under Section 533 if the error has not injured the accused person as to his defence on the merits of his case. The decision reported in 'AIR 1925 Cal 480(1) (A) is easily distinguishable as that was a case where there was no examination at all under Section 342, Cr, P. C., and not one where there was only an omission to append the signature to the statement.
In a later case of the same High Court reported in -- 'Tamezkhan v. Rajjabali Mir', A. I. R. 1927 Cal 330 (B) (where the facts were similar to the present case) Cumming, J. held that 'the failure to comply with the provisions of Section 342 was curable under Section 537, Cr. P, C.' In that case also, all the accused persons except Tamajuddin had been examined at the conclusion of the defence evidence. In -- 'Ramnath Rai v. Emperor', A. I. R. 1921 Pat 374 (C) the accused were examined after the examination in chief of some of the witnesses and the framing of the charge. Jwala Prasad held that there was not a sufficient compliance with the provisions of Section 342 but refused to direct a retrial as it would cause further harassment to the accused. He also observed that the accused would make the very same statement as they had made before, even if they were examined a second time.
To the same effect is the case reported in --'Ferose Kazi v. Emperor', AIR 1940 Pat 295 (D). There the question whether a failure to observe the provisions of Section 342, Cr. P. C., is merely an irregularity or an illegality was left open, I am not, however, prepared to go so far as to lay down that where an accused person is not examined at all under Section 342, Cr. P. C., the trial would not be vitiated, but where there has been a substantial compliance with the requirements of that Section any technical error or omission to have the signature of the accused appended to the statement, is only a curable irregularity and would not vitiate the trial,
6. The next question is whether the accused should have been personally examined or whether the examination of the Mukhtear who had been permitted to appear for her, is sufficient compliance with the Section. The Bombay High Court appears to have taken the view that Section 342, Cr. P. C., should be read as subject to the provisions of S. 205. In -- 'Emperor v. Jaffar Cassum Moosa', A. I. R. 1934 Bom. 212 (E) Beaumont C. J. following an earlier decision of that Court held that the Magistrate was not bound to examine the accused personally if permission had been given under Section 205, Cr. P. C. to exempt him from personal appearance. Section 205, Criminal Procedure Code reads as follows: (His Lordship quoted the provisions of the section and stated). Sub-section (2) only gives a discretion to the Magistrate to direct the personal attendance of the accused at any stage of the proceedings. It is not obligatory on him, therefore, to direct the personal attendance of the accused at any stage, including examination under Section 342. If the Magistrate is satisfied that the examination of the Mukhtear on behalf of the accused is sufficient, the non-examination of the accused personally would not render the trial illegal.
There is also a single Judge decision of the Rangoon High Court in -- 'Po Nyein Maung v. Haka Singh', A. I. R. 1927 Rang. 73 (F) where it was held that women may be permitted to answer examination through their pleaders, and that the benefit of Section 205, Cr. P. C., might be extended throughout the trial except when a judgment, accompanied by a sentence of imprisonment, as to toe delivered.
It is needless to point out here that Section 342, Cr. P. C., is a provision intended for the benefit off the accused and that the accused is not bound to make any statement. It would be ridiculous to suggest that even for the purpose of recasting a refusal to make a statement, the personal attendance of the accused should be insisted upon. In this case, in particular, the first accused Ss said to be a respectable lady observing purdah Her statement was a complete denial of the offence. This could as well be made through her pleader, without prejudicing the case of the complainant and to insist on her personal attendance would involve unnecessary waste of time and harassment to the accused.
7. This petition is without merit and is dismissed.