Lancelot Sanderson, C.J.
1. This is a Rule calling upon the District Magistrate to show cause why the conviction of the petitioner and the sentence passed upon him should not be set aside.
2. The learned Sessions Judge who heard the appeal commented upon the procedure which had been adopted at the trial and said that 'the three sets of cases had a checkered life,' and it is impossible for this Court to view the procedure adopted at the trial with approval. The matter, however, has been simplified by reason of the judgment of the lower Appellate Court, and it is not now necessary for me to deal with the question of the joint trial or whether it was proper to take the depositions in one case and have them copied and used in another case. Speaking generally, in my judgment, that is not a course which should be adopted in trials of criminal cases. The learned judge in the Appeal Court acquitted one of the accused of all the charges and he acquitted the accused Mazahar Ali of two of the charges against him. He upheld the conviction of Mazahar Ali in one case only; that is the case in which Huli Das was the complainant. In that case there is now only one matter which it is necessary for this Court to consider, viz., whether the provisions of Section 342(1) of the Code of Criminal Procedure were complied with in the Trial Court.
2. The first part of the proceedings was heard by the District Magistrate, and when the case was before him the witnesses for the prosecution were examined, and some of them were cross-examined.
3. The accused was examined twice by the District Magistrate, once before all the prosecution witnesses had been examined, and again after all the prosecution witnesses had been examined but before all the witnesses had been cross-examined.
4. The case was then made over to another Magistrate, Mr. J.C. Sen, some of the witnesses for the prosecution were cross-examined before him, the accused put in a written statement of defence and Mr. Sen finished the trial and convicted the petitioner. This in itself was, in my judgment, an undesirable proceeding. The Magistrate who undertakes the trial of a criminal case, and who also hears the witnesses give their evidence should, if possible, finish it.
5. It appears that although, as already stated, some of the prosecution witnesses were cross-examined before Mr. Sen, the accused was not examined generally on the case by Mr. Sen in accordance with the provisions of Section 342(1) of the Code of Criminal Procedure. In my judgment, under these circumstances, the provisions of Section 342(1) of the Code of Criminal Procedure were not complied with.
6. The object of the examination referred to in the section is to enable the accused to explain any circumstances appearing in the evidence against him and the last part of that section runs as follows: 'The Court shall question him generally en the case after the witnesses for the prosecution have been examined and before he is called on for his defence'. In my judgment it is clearly indicated in that part of the section that the time at which the Court shall question the accused generally on the case, is, after the prosecution case is completed and before the accused person is called on for his defence.
7. In this case I have not the least doubt that the accused person was able to put before the Court everything that he wanted to say about his case. He was examined on two occasions by the District Magistrate. The accused said that he would put in a written statement and he did put in a written statement. On the merits, as far I as can see, there is nothing to be said in support of this application, but there are the words of the section which, in my judgment, expressly provide that the Magistrate shall question the accused generally on the case at a certain stage in the proceedings. That stage is, 'after the witnesses for the prosecution have been examined and before he is called on for the defence.' That must mean after the witnesses for the prosecution have been examined, and after the cross-examination and re-examination, if any, of such witnesses, for ordinarily the accused is not called on for his defence until the case for the prosecution is closed.
8. I am not now considering exceptional cases, where it may be necessary for the prosecution, with the sanction of the Court to re-call witnesses, or to give rebutting evidence.
9. The above-mentioned provision in the section is mandatory and it has not been complied with in this case.
10. The result is that we are compelled to make this Rule absolute.
11. It remains to be considered whether the case should be remitted in order that it may be re-tried. It appears from the learned Sessions Judge's judgment that the proceedings were started so long ago as August, 1920. There were partial trials before three Magistrates, the petitioner was in Jail for two weeks. Having regard to these matters, we do not consider it right that the petitioner should be again put on his trial and the result is that the conviction and sentence will be set aside, and the bail-bond will be cancelled.
12. I hope that in future the Courts will observe the provisions of Section 342(1) of the Code of Criminal Procedure. If they will do so, they will save the High Court an immense amount of time, because, in my experience, the point herein considered is frequently arising, and rules have to be issued by reason of the fact that the Trial Court has not observed the provisions of the section.
13. I agree.