1. In my opinion, this case must be disposed of on the footing that there has not been a compliance by the Magistrate with the provisions of Section 342 of the Criminal. Procedure Code.
2. According to the order-sheet, the accused were property called upon to plead. That was on the 14th March 1922, and at that time they stated that they pleaded not guilty and also that they would both file written statements. The duty of the Magistrate under Section 342 is not in question at that stage. It arises when the witnesses for the prosecution have been examined, cross-examined and re-examined and, according to the order-sheet, that process was completed on the 12th April 1922, on which date the case was adjourned until the 25th for the purpose of the accused entering on their defence. It is quite clear that the promise to file written statements made at the time of the plea in no way exonerates or exempts the Court from examining the accused at a later stage as required by Section 342. There is no minute in the order-sheet to the effect that on the 12th April or on the 25th April anything purporting to be an examination of the accused, took place, nor is there any indication of the questions put and the answers obtained upon such examination. It appears from the report made by the Magistrate that, at the close of the prosecution case, he had discussions with the learned Counsel for the defence as to the number and nature of the witnesses the accused were going to call. It also appears from the Magistrate's report that he always understood and, so far as he now remembers, he was told, that the accused would file the written statements promised by them. In these circumstances the Magistrate has said in his report: 'It will thus be seen that I did examine the accused and give them the fullest opportunity to make their statements. And they did so in their written statements filed on the 20th May 1922, when not only had the prosecution witnesses been cross-examined and re-examined but also their own defence been furnished.'
3. Now, the first question which I have to address myself to, is the question whether there has been a compliance with the section. In this country it often happens that a prisoner is tried in a language which, for one reason or another, he understands but indifferently well and for that reason as well as for other equally grave reasons the intention of the Statute is that at a certain stage in the case the Court itself shall put aside all Counsel, all Pleaders, all witnesses, all representatives and shall call upon an individual accused, with the authority of the Court's own voice and take advantage of the opportunity which then arises, to state in his own way anything which he may be desirous of stating. In the case of an accused who is in no difficulty in understanding the proceedings, a question addressed to his Counsel in his hearing and answered by his Counsel in his hearing may. perhaps, be taken in certain circumstances as a compliance with the section. It is not a full compliance with the section: but I say nothing whatever to create any more trouble than is absolutely necessary in any case of that character. What is necessary is, that the accused shall be brought face to face solemnly with an opportunity given to him to make a statement from his place in the dock in order that the Court may have the advantage of hearing his defence if he is willing to make one with his own lips. Now, I cannot think that the fact that there was a discussion with Counsel about the number and nature of the witnesses is the same thing at all as what the section requires. It is important also to have regard to the time at which this examination took place. In the decided cases it has been pointed out that to ask an accused for his defence before he has the whole of the prosecution evidence in front of him, is not a compliance with the section. In my opinion, to ask the accused not at the beginning of his defence but later on when his statements may be subject to heavy discount owing to the evidence given in his hearing by his own witnesses is the meantime, that is not to be assumed to be a substantial compliance with the requirements of the section. In the present case I have an instance not on the side of the accused but on the side of the complainant of this very matter and it is a very good illustration: because in this case much difficulty has been caused and much criticism has been made, because the complainant, whose examination was not finished till after the other witnesses for the prosecution had been examined, introduced matters the value of which might have been taken quite differently if they had been introduced at the earliest possible opportunity. In like manner, an accused who is only given an opportunity to state his defence after the witnesses called by himself have been examined and cross-examined may not be in as good a position as if he had been invited to make his defence at the proper time and before those witnesses were heard. The fact that the accused were asked to put in written statements, in my opinion, is of no great moment for this purpose. There is all the difference in the world between a written statement presumably prepared, almost certainly revised, by the lawyers appearing for the defence and a statement made by the accused himself, so that the Magistrate can observe his demeanour and his manner while he makes it and come to his conclusion as to the value of his evidence. In this country an accused is not allowed to give evidence on his own behalf and, in view of this, Section 342 is of cardinal importance. I say these things not because I am desirous of introducing any new technicalities or any new difficulties as regards procedure in the lower Courts. I quite appreciate that the Stipendiary Magistrates in the City of Calcutta have to get through, a mass of important and difficult work and that some slips are not only natural but inevitable. At the same time, the question whether a non-compliance with Section 342 is fatal to the proceedings is a question as to which I am not prepared, sitting as I now am, to call into question the decision; given in the case of Mazahur Ali v. Emperor 71 Ind. Cas. 662 : 27 C.W.N. 99 : 36 C.L.J. 417 : 24 Cr.L.J. 198. The importance of that case is that the learned Chief Justice distinctly stated this: 'On the merits, so far as I an see, there is nothing to be said in support of this application, but these 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.' It is, no doubt, arguable that the words of the section are mandatory, but that it does not follow that every noncompliance is more than an irregularity. In the present case, on the facts, it is also argued with great plausibility that if it is a proper question to entertain whether or not these accused have suffered any prejudice, the answer should be in the negative. It seems to me highly undesirable that the ruling in the case of Mazahar Ali v. Emperor 71 Ind. Cas. 662 : 27 C.W.N. 99 : 36 C.J.J. 417 : 24 Cr.L.J. 198 should be whittled down by a Court which is not entitled to overrule it: and I expressly reserve my opinion on the question whether that case did or did not go too far. That, however, is the measure of justice and strictness which was meted out to the accused there--and I am not going to exact a lower scale in the present case.
4. In Mr. B.L. Mitter's argument there was a contention that, whether or not failure to comply with the section properly amounts to an irregularity or to an illegality vitiating the proceedings depends on the question of merits, that is to say, on the question whether the accused person has been prejudiced or has not been prejudiced. I must point out that there are some manifest difficulties in this view. My duty, I think is clear, namely, to follow the decision of a Division Bench of this Court and to treat this trial as having become illegal from the moment when, without compliance with Section 342, the Magistrate called upon the accused to enter on their defence.
5. The case is, therefore, sent back to the same Magistrate to begin the proceedings anew as from the end of the re-examination of the witnesses for the prosecution, that being the point at which, in my opinion, for non-compliance with Section 342, the proceedings became illegal under the authority to which I have already referred.
5. Mr. Sanyal must excuse me if I do not discuss certain matters which he has mentioned in arguing this part of the case, but I have to remember that anything I might say at the present moment might Seriously embarrass one or the other of the parties when the proceedings begin afresh in the lower Court.
6. The result, therefore, is that the convictions of the accused are set aside and the case sent back to the same Magistrate to begin the trial afresh from the point which I have indicated.
7. The fines, if paid, must be refunded.
8. The same order is made on the revision petition at the instance of the second accused, the printer.