K.V. Gopalakrishnan Nair, J.
1. The petitioner was convicted by the first class Magistrate at Handwara of an offence Under Section 457 of the Penal Code and sentenced to four months' R. I. and a fine of Rs. 10/-. On appeal to the Sessions Judge at Srinagar, the conviction and the sentence were confirmed. The petitioner has now come up in revision.
2. The learned Counsel for the petitioner seeks to get the conviction set aside on the ground of non-compliance with Section 342 of the Code of Criminal Procedure. It is necessary to state a few facts to appreciate his contention.
3. Before a charge was framed Under Section 254 of the Code, ten witnesses were examined for the prosecution. The petitioner cross-examined al] /those witnesses. The Magistrate questioned the accused rather elaborately on every one of the circumstances appearing in the evidence against him and thereafter framed a charge against the petitioner. Subsequently the charge was duly read and explained to the accused and he was asked whether he was guilty, or had any defence to make. The petitioner pleaded not guilty and at the commencement of the next hearing of the case he was asked whether he wished to cross-examine any and if so which of the witnesses for the prosecution whose evidence had already been taken.
The petitioner expressed his intention to further cross-examine the witnesses Under Section 256, but after ' cross-examining three of them, he stated that he did not desire to cross-examine the other witnesses. The petitioner was then again questioned Under Section 342 of the Code. But the petitioner's learned Counsel has urged that this questioning was brief and scrappy and that the petitioner was not fully examined as required by Section 342. The questions put to the petitioner were whether he heard the evidence adduced against him by the prosecution and what be had to say in respect of it.
The petitioner replied that he heard the pro- % secutiOn evidence against him and that he had nothing further to say in defence. But this examination of the petitioner was recorded not by the Magistrate himself but by his Reader. The Magistrate complied with all the requirements of Sub-section (2) of Section 364, but he did not conform to the requirements of Sub-section (3) of that Section. He did not make a memorandum of the examination; nor did he record the reasons for. his inability to do so.
4. The learned Counsel for the petitioner has attacked the procedure adopted by the Magistrate on the twin grounds of lack of proper compliance with the provisions of Section 342 and the utter non-compliance with Section 364 (3).
5. The learned Advocate General appearing for the State has urged tliat neither of these grounds can vitiate the trial or justify interference in revision. According to him it was not at all necessary for the Magistrate to have examined the petitioner Under Section 342 in view of his elaborate examination under that Section prior to the framing of the charge. He has further urged that the examination of the accused after the framing of the charge, though brief, was sufficient in the circumstances of this case. He has also urged that even if it is held to be insufficient, it has not occasioned any failure of justice and therefore it is cured by Section 537 of the Code. He has pointed out that if any of these contentions of his is accepted, it will be unnecessary to go into the objection of the petitioner based on Section 364 of the Code. He would argue that even non- compliance with Sub-section (3) of Section 464 of the Code is only a curable irregularity in the circumstances of this case.
6. Sub-section (1) of Section 342 of the Code of Criminal Procedure consists of two parts. The first part enables the Magistrate to question the accused at any stage of the inquiry or trial in order to afford him an opportunity to explain the circumstances appearing in the evidence against him. Whether or not the Magistrate should so question the accused under the first part of the Sub-section is discretionary with the Magistrate. But the second part of the Sub-section makes it incumbent upon the Magistrate to question the accuesd 'generally on the case after the witnesses for the prosecution have been examined and before he is called On for his defence.
There is no difficulty at all with regard to the first part of Sub-section (1) of Section 342. But the second part of that Sub-section has been the subject of conflicting interpretations. One view is that the words 'after the witnesses for the prosecution have been examined' do not comprehend the cross-examination of the prosecution witnesses by the accused person Under Section 256 of the Code. The other view is that these words indicate that the only proper stage for questioning Under Section 342 is after the prosecution witnesses previously examined before the framing of the charge are cross-examined by the accused person by exercising the option given to him by Section 256.
An examination of the different authorities in-dicates that it will not be correct to lay down any hard and fast rule regarding the stage at which the accused must be examined under the second part of Section 342. It cannot be gainsaid that a total omission on the part of the Magistrate to examine the accused Under Section 342 will be an illegality vitiating the trial. The adequacy of the examination Under Section 342 must depend upon the facts and circumstances of each case and no precise and comprehensive rules can be enunciated ii respect of it. It is also clear that the examination of the accused person Under Section 342 has to take place only after the entire evidence on the side of the prosecution has been adduced,
It may happen that a charge is framed by the Magistrate after examining only some of the prosecution witnesses. The evidence of die remaining prosecution witnesses may be taken Under Section 256. In such a case it will be imperative for the Magistrate to question the accused Under Section 342 after that prosecution evidence is recorded and widi reference to the facts and circumstances spoken to by those witnesses against him. In such a case it will not be any compliance with Section 342 that before the framing of the charge the accused was question- ed by the Magistrate in respect of the circumstances appearing against him in the evidence then adduced by the prosecution witnesses.
It may also happen in some exceptional cases that fresh material against the accused is disclosed by his own cross-examination of the prosecution witnesses Under Section 256 or in the re-examination of those witnesses under that Section. In such a case also it will be necessary for the Magistrate to examine the accused Under Section 342 with reference to those matters which have emerged from the evidence against the accused persons, I am also inclined to the view that in the classes of cases mentioned above, it will be highly desirable for the Magistrate to question the accused again Under Section 342 generally on the entire case disclosed against farm in the evidence of all the prosecution with cusses.
7. The position, however, appears to me to be different in a case where all the witnesses for the prosecution were examined and cross-examined before the charge was framed and the accused was thereafter questioned properly and in detail Under Section 342 with reference to the matters disclosed against him in that evidence, and the cross-examination or the re-examination Under Section 256 did not bring out any new matter against him. In such a case the accused had already his full say by way oi explaining the circumstances appearing in the evidence against him ' and it will be a mere formality to repeat the process over again after he has cross-examined the prosecution witnesses Under Section 258.
The principle underlying the provisions of Section 342(1) must not be lost sight of. It should not be reduced to a meaningless ritual or an empty formality. If the entire evidence of the prosecution was already adduced and the accused was properly questioned in respect or everything that appeared against him in that evidence even before he exercised his option of cross-examining the prosecution witnesses Under Section 256, which cross-examination disclosed nothing new against him, it will be idle to go through the formality of repeating the process over again at a later stage.
A Full Bench of Madras High Court in Vari-sai Rowther v. Emperor A.I.R. 1923 Mad 609 has held that the cross-examination of recalled prosecution witnesses Under Section 256 is not an examination of the prosecution witnesses within the meaning of Section 342 and therefore omission to question the accused after this examination of recalled prosecution witnesses is not an illegality. This cross-examination, it was pointed out was rather an evidence for the defence than evidence for die prosecution.
8. R. A. Byrne v. Emperor A.I.R. 1924 Lah 84 was a case where the accused was questioned very fully and fairly by the Magistrate after all the witnesses for the prosecution had been examined and cross-examined before the charge was framed. After the charge was framed, most of the witnesses were recalled for a further lengthy cross-examination at the termination of which the Magistrate proceeded to record the defence evidence without questioning the accused again. It was held that it was unnecessary to question the accused again Under Section 342 after he had cross-examined the prosecution witnesses Under Section 256.
9. In Emperor v. Nadir A.I.R. 1929 Lah 371, it was again held that an accused need not necessarily be again examined Under Section 342, after the further cross-examination of witnesses for the prosecution recalled after the charge, especially when the witnesses had already been cross-examined in detail before charge and no fresh prosecution witnesses were examined after charge. The decision of the Full Bench of the Madras High Court in A.I.R. 1923 Mad 609 and the decision of the Punjab High Court in A.I.R. 1924 Lah 84 were followed.
10. In Mahomed Nawaz v. Emperor A.I.R. 1938 Lah 543 it was pointed out that further cross-examination of the Drosecurtion witnesses Under Section 256 is not a part of the prosecution case.
11. In Hafiz Mohd. v. Emperor A.I.R. 193Q All 319 it was observed that Section 342 requires the accused to be examined at a stage when he knows all that the witnesses are going to say against him, and that when he cross-examines the witnesses after the charge, he does so presumably as a part S his defence and that it is not to be supposed that he intends to elicit further information which may be against liim.
12. In Sahadeviah v. Venkatamma A.I.R. 1950 Mys 2l a single Judge oi the Mysore High Court following a Full Bench decision of that court reported in 29 Mys. C. C. Rule 241 held as follows:-
Provided an accused person is examined generally on the case after the whole of evidence produced in support of the prosecution has been taken by the court, it is not obligatory on the Court to further examine him after any prosecution witnesses whose evidence has been already taken, are recalled at die instance of the accused and cross-examined and re-examined, and an omission to do so is neither an illegality which vitiates the trial nor an error or irregularity which requires to be cured Under Section 537.
13. The Chief Court of Oudh, in Emperor v. Brij Behari A.I.R. 1925 Oudh 422 has also taken the view dial examination of the accused for the second time after the second cross-examination of the prosecution witnesses Under Section 256 by the accused is not necessary.
14. There is another line of decision striking a different note. See for instance, Bhokhari Singh V. Emperor A.I.R. 1924 Pat 791(2); Ah Khaung v. Emperor A.I.R. 1925 Hang 363; Local Govt. v. Maria A.I.R. 1925 Nag 44 (FB) and Hassan v. Emperor A.I.R. 1936 Pesh 211. They take the view that the accused has perforce to be examined Under Section 342 after the prosecution witnesses have been recalled and cross-examined Under Section 256 irrespective of whether any circumstance or detail of importance against the accused is elicited in such cross-examination or re-examination, jf any, and irrespective of whether the accused was fully and fairly questioned before the framing of the charge with reference to the evidence of all the prosecution witnesses.
These decisions seem to insist more on formality than on substance. It is difficult to see why further examination Under Section 342 becomes necessary when the accused was already questioned under that Section before the framing of the charge regarding every detail and circumstance appearing against him in the evidence, and when no new fact Or circumstance emerged against him in the cross-examination or re-examination Under Section 256. The object of Section 342 was fully satisfied by the questioning done before the charge and it would be a needless formality to repeat the process after the charge.
15. The view that even if the cross-examination or re-examination Under Section 256 discloses new facts and circumstances against the accused, he need not be questioned again Under Section 342 in a case where he was questioned before the framing f the charge in the light of what the prosecution witnesses then stated, also does not appeal to me. True, it is rarely that an accused person will elicit circumstances against him by cross-examining prosecution witnesses Under Section 256. But such a possibility cannot completely be ruled out, more especially so when an accused person unskilled in cross-examination tackles the witnesses.
It is also not impossible to conceive of a case Where material adverse to the accused may be elicited even in re-examination. This aspect of the matter is sought to be rendered irrelevant by arguing that the evidence recorded in cross-exami-nation Under Section 256 is not part of the evidence on the side of the prosecution, but must be regarded as evidence on the side of the defence. This argument leads to the anomaly of saying that the accused must be taken to have led defence evidence even before he is called to enter on his defence. 'His argument is based on the words 'after the witnesses for the prosecution have been examined' occurring in the second part of Section 342 (1).
These words are construed to mean 'after the prosecution has elicited what they desire from the witnesses.' Such u construction does not seem to give full effect to the words ''witnesses for the prosecution have been examined.' In Section 342 (1), the importance seems to lie in what the prosecution witnesses state, which will necessarily include also what they state in cross-examination. The evidence which the prosecution desires to tender will ordinarily be elicited in the examination-in-chief of the prosecution witnesses. But that is not the entire evidence of the prosecution witnesses.
The Section takes into account what they may $ay in cross-examination as well; otherwise the Magistrate in questioning the accused Under Section 342 can totally ignore the statements made by the prosecution witnesses in their cross-examination before the Charge is framed, even if the statements directly go against the accused and disclose important circumstances against him. Such circumstances will appear So the evidence against the accused within the meaning of Section 342(1). The accused will, therefore, have to be given an opportunity to explain, those circumstances also, ii the intention were otherwise, the Section would have expressly stated to the effect that the accused need be questioned only in respect of the circumstances appearing against him in the evidence recorded in the examination-in-chief of the prosecution witnesses.
That clearly is not what the Section says of intends. It is, therefore, clear that if the accused v cross-examines the prosecution witnesses at length before the framing of the charge and such cross-examination brings out facts and circumstances against the accused, those facts and circumstances also have to be put to the accused under Sub-section1) of Section 342 so as to enable him to explain them. Why should there be any difference if the cross-examination takes place Under Section 256 instead of before the framing of the charge? It is no answer to point to the right of the accused to cross-examine the prosecution witnesses Under Section 257 after he enters on hi defence.
This cross-examination is expressly put out of the purview of Section 342 by the words 'before he is called on for his defence in that Section'. It, therefore, appears to me that if the cross-examination of the prosecution witnesses by the accused, whether it be before the charge or Under Section 256, discloses material of an important nature against the accused, it is necessary to examine the accused Under Section 342(1) with respect to that material. But if the cross-examination Under Section 256 discloses no further circumstances against the accused-this would be the position ordinarily-it will be unnecessary to question the accused again Under Section 342, if he was previously questioned before the charge with reference to the -evidence of all the prosecution witnesses. This view steers a somewhat middle course between the two extreme views referred to by me.
But this middle course seems to me to achieve the object and fulfil the intention of Section 342 better than either of the extreme views. I should not, however, be understood as saying that the accused should not be examined Under Section 342 after cross-examination Under Section 256 unless the cross- examination discloses fresh circumstances against him. t am only pointing out that it is not necessary to do so if the cross-examination Under Section 258 brings out nothing new against the accused. But there will be no harm-it may even be desired-to question the accused Under Section 342 generally on the case, even if the cross-examination Under Section 256 reveals no new fact or circumstances against the accused person.
16. Turning to the facts of the instant case which I have already detailed, I have no hesitation in holding that it was not necessary to question the accused again Under Section 342 after cross-examination of some of the prosecution witnesses Under Section 256. : But in fact the Magistrate did question the accused Under Section 342 a second time after the accused had cross-examined some of the prosecution witnesses, But it is complained on behalf of the accused that this second cross-examination was much too scrappy and fragmentary to be considered good or proper Under Section 342. I do not think so. In view of the earlier elaborate questioning of the accused under ~f' Section 342 in respect of the same evidence and the same circumstances, it would have been unnecessary for the Magistrate to do it at the same length over again a second time.
Furthermore, the facts of this case are so simple and free from any complication. The facts and circumstances which emerged against the accused from the prosecution evidence were clear and straight. What is even more important is that the learned Counsel for the petitioner has been wholly unable to show that as a result of the alleged inadequate examination of the accused a second time, any prejudice has been caused to the accused. In the circumstances it is not possible to interfere in this revision on the ground that the examination of die accused Under Section 342 after the charge was framed was not as full or sufficient as his examination before the framing of the charge. 1 may refer in this connection to tile decision of the Supreme Court in Bejoy Chand v. State of West Bengal : 1952CriLJ644 . I may also refer to another decision of the Supreme Court in Kedar Nath v. State of West Bengal. A.I.R. 1954 SG 660. At P. 679 Jagannadhadas J. who delivered the judgment of the court observed:
The lacuna, however, is that there has been no questioning Under Section 342 of the Criminal Procedure Code oi the two appellants, Kedar Nath Bajoria and Vaid on this part of the case, as regards any of these adverse circumstances which form the basis of the conclusion of the Courts below on this claim. There is a complete lack of any reference to these matters in the questions put to either of the appellants Under Section 342, Cr.PC. This undoubtedly is a serious irregularity and cannot ba lightly ignored.
If prejudice was thereby caused, such an irregularity would entail retrial in the circumstances of a case like this. But before a retrial can be ordered the Court must be clearly satisfied about prejudice having been caused.
In the course of the arguments before us when the above mentioned circumstances were relied on against the appellants their learned Counsel has not ' been able to indicate to us the likelihood of any plausible and reasonable explanations which the appellants may have furnished about them on questioning. The appellants have been defended throughout and the unavailability of any likely and reasonable explanation even at this stage is a relevant consideration to determine the course to be adopted by an appellate court, when such a procedural lacuna Is found. On the facts of this case we are not satisfied that any serious prejudice has been caused and that a retrial at this stage is likely to be productive of any fruitful purpose.
17. I may also refer to Bimbadhar v. Orissa State, (S) : 1956CriLJ831 where Sinha J. pointed out at p. 475 as under:
Secondly it was contended that the evidence of P.W. 27 who had been chiefly relied upon in the courts below as corroborating the approver had not been specifically put to the appellant though the evidence of the approver Pitabas Sahu was pointedly put to him. In our opinion, it is not ordinarily necessary to put the evidence of each individual witness to the accused in his examination Under Section 342, Criminal P.C. The appellant was put the question 'Have you got anything to say on the evidence of the witnesses?
That, in our opinion, is sufficient in the circumstances of this case to show that the attention of the accused was called to the prosecution evidence. As to what is or is not a full compliance with the provisions of that Section of the Code must depend upon the facts and circumstances of each case. In our opinion, it cannot be said that the accused has been in any way prejudiced by the way he has been questioned under that Section.
18. To sum up:
1. It was not necessary, in the circumstances j of this case to have questioned the accused again I Under Section 342;
2. That even the questioning on the second occasion was adequate; and
3. Even it it be considered to be inadequate, it is, in view of the absolute lack of prejudice to the accused in this case, a mere irregularity cured by Section 537 and does not, therefore, call for interference in revision.
19. Regarding the omission of the Magistrate to comply with the provisions of Sub-section (3) of Section I am of the view that it does not go to the root of the matter or affect the merits of this case. It is not disputed-and cannot be disputed-that the statement of the accused was recorded by the Reader in open Court in the presence of and under the direction of the Magistrate. It has been signed by the Magistrate and the accused, and the Magistrate has certified under his own hand that the examination was taken in his presence and hearing and that the record contained a full and thorough account of the statement made by the accused. Therefore, the mere omission of the Magistrate to make a memorandum of the statement or to record reasons of his inability to do so must be considered to be a mere irregularity which has caused no manner of prejudice to the accused and is, therefore, curable Under Section 537. I think the principle of the decision of the Privy Council in Abdul Rahman v. Emperor A.I.R. 1927 P.C. 44 applies to this case. That was a case where the statement of the witnesses for the prosecution were handed over to them for being read, and were not read out to them in the presence of the accused and his pleader as required by Section 360 of the Criminal P.C. The objection was taken that a mandatory provision of the Code had not been complied with, Their Lordships after referring to the relevant provisions of the Code of Criminal Procedure concluded as follows:
To sum up: in the view which their Lordships take of the several Sections of the Criminal P.C. the bare fact of such an omission or irregularity as occurred in the case under appeal unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned, is not enough to' warrant the quashing of a conviction which in their Lordships' view may be supported by the curative provisions of Sections 535 and 537.
In view of the foregoing, I am not satisfied that any interference is called for in this revision which is, therefore, dismissed.
20. The bail granted to the accused petitioner is cancelled.