1. The petitioner has been convicted under Section 65, Port Rules framed under the Calcutta Port Act 3 (B.C.) of 1890 and sentenced to pay a fine of Rs. 5 or in default to undergo simple imprisonment for 7 days.
2. The grounds on which this Rule has been pressed are that the petitioner was not examined by the Magistrate after the examination of the prosecution witnesses and no memorandum of the examination of the petitioner was kept by the Magistrate. The records have been destroyed but the learned Magistrate has stated in his explanation that he did examine the petitioner under Section 342, Criminal P.C. This explanation must be accepted and the only question is whether the failure to keep a memorandum of the statement of the petitioner can be held to have-vitiated the trial. The entry in the column of the form provided for making a record of the plea and the examination-of the accused is 'Denies.'
3. Now Section 370, Criminal P.C. itself does not say how the particulars are to be-recorded, but there are two other section in the Code from, which light has to be-gathered on this matter, namely Sections 362 and 364. The last words of Sub-section (4) Section 364.
Or in the course of a trial held by a Presidency Magistrate
were inserted by the Amending Act 1923 thus making the other Sub-sections of that section inapplicable to a record made: by a Presidency Magistrate of an examination of an accused person in the course of a trial held by him. The same amending; Act introduced two Sub-sections in Section 362 namely 2-A and 4.Sub-section 4 dispensed with the recording of evidence and the framing of a charge in non-appealable-cases in trials held by Presidency Magistrate, but said nothing about the record of the accused's examination. Sub-section 2-A. expressly provided for a memorandum of the substance of the examination of an accused being kept by the Presidency Magistrate, signed by The Magistrate with his own hand, in appealable cases-only. The result is that non-appealable-cases are now left severely alone, confined to the protection that Section 370 by its own terms would afford. It is idle to imagine that the legislature while expressly taking away the necessity to record the evidence and to frame a charge, as it has done by enacting Sub-section (4), Section 362 in non-appealable cases, thought of a record in full or of the substance of the examination of the accused in, such cases. The result in my opinion, is that it should be held that while the column provided form this purpose in the form prescribed by Section 370 must be filled up, no hard and fast rule was contemplated as to how that should be done. In the present case the word 'denies' has been written in the column. It may be that when the plea was taken and again when the petitioner was examined as I must hold that he was examined he merely denied having committed the offence. If that was the fact the entry was sufficient. The rule should therefore be discharged and I order accordingly.