(1) The other point raised by Mr. Barot relates to the learned Magistrate having not followed the provisions contained in S. 342 of the Criminal Procedure Code inasmuch as he did not put questions with regard to the evidence and the circumstances disclosed therein so as to enable the accused to explain the same. If one turns to the further statements of the accused, each of them has been asked no doubt a general question about his having heard the prosecution evidence led in the case and whether he had to say anything in the matter. All of them have replied by saying that he produces his written statement. It appears that the written statement was produced by accused No. 1 and it is AIR 1967 GUJARAT Ex. 42. The rest of the accused have stated in reply to the question put by the Court that he admits the contents of the written statement filed by accused No. 1 and that he has put his thumb impression thereon. Now, it is not that there is any bar to the accused putting any written statement in response to the general question put by the Court at the stage when he is examined under S. 342 of the Criminal Procedure Code. Such a written statement is often produced by the accused, and the Courts of the Magistrates have been accepting the same. That in a way appears to have been prepared under the guidance of the advocates appearing for the accused, presumably for the reason that the accused may not be asked any questions by the Court, the reply to which may turn out sometimes not helpful to him in the case. It is no doubt the duty of the Court to put all questions in respect of the evidence and circumstances disclosed in the case, so as to enable the accused to explain the same. But if the Court feels satisfied after satisfying itself that the written statement filed by him is voluntarily made and the contents whereof are admitted by him to be true, it may not be so very necessary then to put all such questions particularly when the explanations to the same are given in his written statement. I am shown no authority which suggests that in spite of all that, not having put questions under S. 342 of the Criminal Procedure Code to the accused by the Court, the trial would be vitiated on that account. Now, if we look to the written statement Ex. 42, it is a very elaborate statement containing four pages and dealing with every little aspect of the case. If, in such circumstances, the Court felt satisfied that the accused has explained the evidence and circumstances disclosed in the case against him, it may not be so very necessary to put questions thereafter so as to have practically the same answer, which have been set out in their written statement. What is required under S. 342 of the Criminal Procedure Code is fulfilled. I do not see how the provisions contained in S. 342 would be too much for such an accused or his learned advocate now to raise such a question, when that method was obviously helpful, and for his benefit, and more so when no prejudice to him is thereby caused.
(2) In this connection, I was referred to a case of Jai Dev v. State of Punjab, AIR 1963 SC 612, where the Supreme Court has explained the effect of the earlier case of Ajmer Singh v. State of Punjab, AIR 1953 SC 76. The Supreme Court has held that:
'The examination of the accused person under S. 342 is intended to give him an opportunity to explain any circumstances appearing in the evidence against him. In exercising its powers under S. 342, the Court must take care to put all relevant circumstances appearing in the evidence to the accused person. It would not be enough to put a few general and board questions to the accused, for by adopting such a course the accused may not get opportunity of explaining all the relevant circumstances. On the other hand, it would not be fair or right that the Court, should put to the accused person detailed questions which may amount to his cross-examination. The ultimate test in determining whether or not the accused has been fairly examined under S. 342 would be to quire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a series infirmity . It is obvious that no general rule can be laid down in regard to the manner in which the accused person should be examined under S. 42. Broadly speaking, however the true position appears to that passion for brevity which may content with asking a few omnibus general questions is a much inconsistent with the requirements of S. 342 as anxiety for thoroughness which may dictated an unduly detailed and large number of questions which may amount to the cross-examination of the accused person'.
The Supreme Court has in earlier case of AIR 1953 SC 76, observed that every error or omission not in compliance with the provisions of s. 342 does not necessarily vitiate a trial, Errors of this type fall within the category of curable irregularities, and the question whether the trail is vitiated depends upon the degree of the error and upon whether prejudice has been or is likely to have been caused to the accused. With these observations and having regard to S. 537, C1 (a) of the Criminal Procedure Code, I do not find any illegality in accepting the written statement field by the accused or even an irregularity which would justify one to say that any prejudice had come to be caused to the accused-applicants which could not be cured having regard to s. 537 C1 (a) of the Criminal Procedure Code. Neither of these two cases deals with a case in which any written statement has been filed by the accused in the trail before the Court and I am not shown any other provision of law or even any authority which debars the Court from accepting any written statement from the accused in the court of the Magistrate at the time when his further examination is taken under S. 342 of the Criminal Procedure Code, It is indeed true and I do not subscribe to the view that the Magistrate should in all cases try to obtain a written statement as to save his labour, for its appears essential so as to comply with the provisions of S. 342 of the Criminal Procedure Code that he should not fail in his duty to get satisfaction by putting questions arising out of the evidence as also the circumstances in the case to the accused so as to enable him to explain the circumstances and more particularly when some of them have not been explained or replied to in the written statement filed by him. If any materials questions arising out of the evidence have not been put to and if as a result thereof, the accused have had to suffer, then certainly having regard to the principles laid down in the cases set out here above, the irregularity may not be curable under S. 537 (a) of the Criminal Procedure Code and the trail may have to be vitiated. Nothing of the kind, however, arises in the present case, for I feel quite satisfied that the written statement covers all the points and as I said above. It tries to meet any and every possible argument arising out of the prosecution case against them.
(3) Petition dismissed.