1. The petitioners have been convicted of rioting under Section 147, I.P.C., and their appeal to the learned Sessions Judge against their conviction has been dismissed. The case for the prosecution was that these petitioners trespassed upon the bari of the complainant and there assaulted him. This rule must succeed upon one ground argued before us. The second petitioner Safiuddin Ahmad when examined under Section 342, Criminal P.C., was questioned in the following manner:
Q. - You have heard the prosecution evidence and cross-examination. Have you got anything to say?
A. - I have committed no offence.
Q. - How did they come by injuries?
A. - They raised a structure on the land of Muksed Mia. They went to enter forcibly. Then there was a maramari with us.
Q. - When did they go to effect a forcible entry?
A. - In the small hours of the morning.
Q. - Who were there?
A. - A woman, Babu Mia, Nasimaddin, Dhola Mia.
Q. - Had they lathis in their hands?
A. - Yes. Babu Mia, Dhana Mia and Nasimaddin had lathis with them.
Q - Who of you were there?
A. - Tahaninaddin Ahmed, I and some Kamlas of the north area.
Q. - How many Kamlas were there?
A. - 5 men.
2. Now, the Section prescribes that the Court may put such questions to the accused as the Court considers necessary for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, and that the Court shall for the purpose aforesaid question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. This does not mean that the accused is to be subjected to questioning in the nature of cross-examination. The manner in which this petitioner was examined by the learned Magistrate is suggestive of cross-examination and we find from a perusal of the learned Magistrate's judgment that he has used the answers which he elicited from this accused for the purpose of discrediting an affirmative are set up by all the accused and supported by a number of witnesses examined on behalf of the defence. In dealing with the evidence for the defence, the learned Magistrate has observed as follows:
Then again, all these witnesses have said that they saw Nasimaddin, Babu Meah and others at the hut on the previous evening. If that be so, they stayed the night at that hut. But accused Safiuddin Ahmed has said in his statement that the occurrence took place when Nasimaddin and others were forcibly entering into the hut. This shows that Nasimaddin and others had not entered the hut in the evening but were doing so in the last part of the night. This is a serious discrepancy.
3. The Court may, and indeed should consider the statement of the accused made under the provisions of Section 342, Criminal P.C., for the purpose of enabling it to arrive at the truth. But that does not mean that an accused person should be questioned by the Court in the manner in which the petitioner Safiuddin Ahmad was questioned in this case with the object of obtaining something with which to demolish the sworn testimony of the defence witnesses. This rule is made absolute and it is directed that the accused persons be retried for the defence of rioting under Section 147, I.P.C., by some Magistrate other than the Magistrate by whom they were tried.
4. I agree and wish to add a few words. I find that the object of the provisions of Section 342, Criminal P.C., is often misunderstood and that these provisions are often misused. In the present case, the learned Magistrate certainly misused the provisions of this Section. Section 342, Criminal P.C., enjoins upon the Court the duty of placing before the accused the circumstances appearing against him in order that the accused may be given an opportunity of explaining them. This is the main object of the Section. The Section was never intended for the purpose of cross-examining the accused or for filling up gaps in the case for the prosecution. The primary object of the Section is to assist the accused in explaining the circumstances which have appeared against him. I find that in many cases learned Magistrates content themselves by asking the accused a stereotyped question like this. 'Have you anything to say? or what is your answer?' This is not a sufficient compliance with the provisions of Section 342, Criminal P.C. The Court should go further and place the materials which appear against the accused before him so that the accused may give his explanation.
5. Again, there are instances and the present case is one of those instances where the learned Magistrate proceeds to subject the accused to a sort of inquisition. This again, is against the provisions of the Section. There has been a further error committed by the learned Magistrate and it is this. He has used the statement of the accused against his co-accused. This is certainly not permissible as the statement is not of a confessional nature. The statements made by the accused under Section 342 are to be considered by the Court and the Court should draw such an inference from the answer of the accused or refusal to answer as it thinks just. In my opinion, the Court in some cases may draw even an inference against the accused from his answer or refusal to answer. But the Court is not entitled to draw any inference against a co-accused from the answer of one accused given in [response to questions put to him under the provisions of this Section. I am of opinion that in this case there has been a misuse of the provisions of Section 342, Criminal P.C., and I consider that the conviction cannot toe upheld.