S.K. Ghose, J.
1. This is a reference by the Sessions Judge of Nadia recommending that the commitment of Ajahar Mondal and others may be quashed under Section 215, Criminal P.C. It appears that after an inquiry in the Court of the Sub-Divisional Magistrate the accused were committed to the Court of Session on charges under Sections 304 and 323, I.P.C. Before the committing Magistrate the prosecution witnesses were not cross-examined, nor were any defence witnesses examined. The accused were also not examined under Section 342, Criminal P.C. The Judge says that this omission to examine the accused is illegal, and accordingly he recommenced that the commitment should be quashed. There is no doubt that it is very desirable that there should be an examination of the accused in the Court of the committing Magistrate. But the point now debated is that there must be an examination of the accused under the mandatory provisions of 8. 342, Criminal Procedure Code, before the accused is committed to the Court of Sessions and that the omission to so examine the accused is illegal. It is pointed out that Section 342 occurs in Chap. XXIV of the Code which makes general provisions to inquiries and trials. Sub-section (1), Section 342 may be divided into two parts. The first part is discretionary and it says that for the purpose of enabling the accused to explain any circumstance appearing in the evidence against him the Court may put such questions to him as it considers necessary. Then there is the mandatory part, which says that the Court shall for the purpose aforesaid question him generally on the case after the witnesses for the prosecution have been examined and the accused is called upon for his defence. There is no doubt that this mandatory provision will apply to all inquiries and trials provided that the stage mentioned therein is reached, namely after the witnesses for the prosecution have been examined and before the accused is called upon for his defence. This is clear enough, but see for instance Bechu Lal Kayastha v. Injured Lady, 1927 Cal 250. Now the question arises whether such a stage is reached in an inquiry under the provisions of Chap. XVIII. According to Section 208, Criminal P.C., the Magistrate shall take all such evidence as may be produced in support of the prosecution or on behalf of the accused or as may be called for by the Magistrate.
2. Then according to Section 209 when such evidence has been taken and the Magistrate has, if necessary, examined the accused for the purpose of enabling him to explain any circumstance appearing in the evidence against him, the matter is to proceed further. It will be seen that this latter provision corresponds to the first or discretionary part of Sub-section (1), Section 342. It is contended that this does not mean that the second or mandatory part of Section 342 is excluded from the scope of an inquiry held under Chap. XVIII. But the fact that the discretionary provision occurs in Section 209 and the mandatory provision does not occur is itself an indication that ordinarily in an inquiry in the committing Magistrate's Court, the stage at which the accused is called upon for his defence is not reached. Section 210 provides for the framing of a charge, but it does not follow that the next proceeding is for the accused to enter on his defence. It is not provided that the accused shall be called upon to finish the cross-examination of the prosecution witnesses, and there enter upon his defence such as is provided for in Section 256. All that Section 211 says is that the accused shall be required to give in a list of the persons whom he wishes to summon to give evidence on his trial, that is, his trial in the Court of Session. The Magistrate may in his discretion examine any of these witnesses under Section 212. But at no stage in the inquiry is the accused called upon for his defence. On the contrary, Section 219 provides that even after commitment the Magistrate may summon and examine supplementary witnesses and such examination shall, if possible, be taken in the presence of the accused. Thus it is apparent that in the Court of the committing Magistrate the stage at which the examination of the accused is mandatory is not reached. Obviously that stage is only reached at the trial in the Court of Session. In support of the reference reliance has been placed on Queen Empress v. Pandara Tewan (1900) 23 Mad 636. That case was decided in 1900 and it seems to have overlooked the fact that the words 'if necessary' in Section 209 did not occur in the Code of 1882, but were introduced for the first time in the Code of 1898, for the view that the effect of Section 209 is that it is not left to the discretion of the Magistrate is not borne out by the words of the section itself. Moreover, as the Advocate for the Crown has pointed out, in this case the provisions of Section 342 were apparently not considered. Out attention has been drawn to Dinu v. Emperor, 1921 Sind 131 and the view taken therein meets with our approval. It stands to reason that, in a case which is triable by a Sessions Court it is the latter Court which tries the accused and calls upon him to enter on his defence and therefore it is to that Court that the mandatory provision is applicable. That being so, it cannot be said that the omission to examine the accused in the committing Court in this case was a disregard of an express provision of law and therefore illegal. The reference must be rejected. The records must be sent down as early as possible.
3. I agree. Mr. Chatterji made a desperate attempt to persuade us to hold that an accused person is called upon for his defence before the committing Magistrate, that is to say at a time when he has not even pleaded; to the charge and when the prosecution have not examined a single 'witness before the only Court which has power to try him. That argument not only gives the words used an unnatural meaning but also entirely ignores the provisions of Section 289.