JUDGMENT
Kulwant Sahay, J.
1. All the five petitioners have Been convicted under Section 147 of the Indian Penal Code, and the petitioners Ramlakhan and Sitaram have been further convicted under Section 325 of the Indian Penal Code. Ramlakhan has been sentenced to one year’s rigorous imprisonment under Section 147 and nine months’ rigorous, imprisonment under Section 325. Sitaram has been sentenced to nine months’ rigorous imprisonment under Section 147 and nine months’ rigorous imprisonment under Section 325, the sentences in both cases being concurrent. They have also been sentenced, to pay a fine of Rs. 100 each under Section 147 of the Indian Penal Code. The petitioners Durga Ram and Mani Lal have been sentenced to six months’ rigorous imprisonment under Section 147 and Ramkhelawan has been sentenced to three months’ rigorous imprisonment under Section 147. All the petitioners have been further bound down to keep the peace for one year under Section 106 of the Cr. P.C. in the sum of Rs. 500 each with one surety of like amount. The convictions and sentences have been upheld by the Sessions Judge.
2. The principal point taken by the learned Counsel for the petitioners in this revision case is that the provisions of Section 342 of the Cr. P.C. have not been complied with. It appears that before the cross-examination of the prosecution witnesses the accused persons were asked as to what was their defence, and subsequently after the cross-examination of the prosecution witnesses and before the accused were called upon to enter on their defence they were asked by the Trying Magistrate that they had heard the cross-examination of the prosecution witnesses, whether they had any thing further to say to which they replied that they did not wish to say any thing further. It is argued that this sort of examination of the accused is not a sufficient compliance with the provisions of Section 342 of the Cr. P.C. The objection was taken before the learned Sessions Judge and he dealt with this point as follows:
3. On this point the learned Counsel’s contention is that though the examination of the accused was recorded before the prosecution witnesses were cross-examined, and that subsequently after the cross-examination of those witnesses was finished and before the accused were called on for their defence there was further examination of the accused, yet the Magistrate did not satisfy the provisions of Section 342 of the Cr. P.C. as explained in Bhokhari Singh v. Emperor 81 Ind. Cas. 199 : 5 P.L.T. 415 : (1924) Pat. 198 : 25 Cr. L.J. 711 : (1924) A.I.R. (Pat.) 791, inasmuch as the accused were merely asked whether they had anything further to say and their answers were in the negative. The accused have made detailed statements in their former examinations and it appears from the Magistrate’s certificate that the accused were asked if they had to say anything in defence after the cross-examination of the prosecution witnesses, and the reply was that they did not wish to say anything further. I do not think that the appellants have been prejudiced inasmuch as they explained in full, and were also given opportunity to explain, the evidence appearing against them at different stages in the course of the trial. An order of remand would serve no useful purpose. Moreover the learned Counsel for the appellants does not want that the case should be sent back for re-trial.” It appears, therefore, that the learned Sessions Judge on appeal, is of opinion that there was a sufficient compliance with the provisions of Section 342 in the present case by the mere fact of the Trying Magistrate asking the accused persons after the cross-examination of the prosecution witnesses whether they had any thing to say in defence after hearing the cross-examination of the prosecution witnesses’. He is further of opinion that the appellants were not prejudiced by their not being examined properly inasmuch as opportunity was given to them to explain the evidence appearing against them at different stages in the course of the trial. He was further of opinion that a remand would serve no useful purpose and it appears that the learned Counsel for the appellants did not press before him for a re-trial of the case. Before me, however, the learned Counsel for the petitioners presses for a re-trial. I am clearly of opinion that the examination of the accused persons in the present case has not been made in compliance with the provisions of Section 342 and it does not matter whether the accused persons were or were not prejudiced by the non-compliance with the provisions of Section 342 inasmuch as the non-compliance of the provisions of the said section amounts to an illegality which vitiates the trial altogether. The question as to the non-compliance with the provisions of Section 342 vitiating the trial is now firmly established by the decisions of the several High Courts in the country–see Raghu Bhumij v. Emperor 58 Ind. Cas. 49 : 1 P.L.T. 241 : 21 Cr. L.J. 705 : 5 P.L.J.430, Fatu Santal v. Emperor 61 Ind. Cas. 705 : 2 P.L.T. 288 : 22 Cr. L.J. 417 : 6 P.L.J. 147, Kashi Pramanik v. Damu Pramanik 77 Ind. Cas. 988 : 27 C.W.N. 28 : 25 Cr. L.J. 524, Tani v. Emperor 48 Ind. Cas. 487 : 20 Cr. L.J. 12, Udhao v. Emperor 77 Ind. Cas. 593 : 25 Or. L.J. 417 : (1924) A.I.R. (N) 311 and Mazahar Ali v. Emperor 71 Ind. Cas. 662 : 50 C. 223 : 36 C.L.J. 417 : 27 C.W.N. 99 : 24 Cr. L.J. 198 : (1923) A.I.R. (C.) 196. Reliance has been placed by the learned Assistant Government Advocate upon the case of Mir Tilawan v. Emperor 69 Ind. Cas. 383 : 1 Pat. 31 : (1922) A.I.F. (Pat.) 388 : 23 Cr. L.J. 703 : 4 P.L.T. 60 : 1 Pat. L.R. 35 Cr., where a Division Bench of this Court held that where an accused person files a written statement not only after’ the prosecution witnesses have been examined, cross-examined and re-examined but also after the defence witnesses have also been cross-examined and discharged, the mere fact that the provisions of Section 342 of the Cr. P.C. have not been complied with would not vitiate the trial as in such a case the accused could not have been prejudiced and miscarriage of justice caused. But the decision in this case is opposed to the long string of decisions referred to above and I am not prepared to follow the decision in this case in preference to the considered opinion of the Judges in the different High Courts in the cases cited above. The question for consideration in the present case is as to whether the examination of the accused persons was a sufficient compliance with the law. There was, no doubt, an examination of the accused, but what, is required by Section 342 is that the Court shall, for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, question him generally on the case after the witnesses for the prosecution have been examined and before he is called: on for his defence. The examination of the accused is for the purpose of enabling him to explain circumstances appearing in the evidence against him. In order to enable the accused to know what are the circumstances appearing in the evidence against him and what the Court considers to be such circumstances, it is necessary for the Court to put those circumstances directly to the accused and to ask him to explain, those circumstances if he can. It is not always possible for the accused to know as to what are the circumstances which to the Court may appear to be against him and it is possible that the Court may consider one circumstance appearing from the evidence as being against the accused while the accused may not consider that circumstance to be against him. The object of Section 342 Cr. P.C. is to enable the accused to know what in the opinion of the Court, are the circumstances which from the evidence appear to be against him. The section clearly makes it obligatory for the Court to tell the accused as to what are the circum stances which he has to explain. The time and the stage of the trial at which the Court is required to put the question to the accused is also of importance; it is after the close of the prosecution case and before accused is called on for his defence. At this stage of the trial it is necessary that the Court should make up its mind as to whether there are circumstances appearing from the prosecution evidence to be against the accused and, if the Court is of opinion that there are no circumstances appearing in the evidence against the accused it is the duty of the Court to acquit the accused without calling on him to enter on Ms defence. In order to make up its mind the Court has to consider the evidence for the prosecution and to see what are the circumstances which appear to be against the accused and the accused has to be apprised of those circumstances so that they he may, if he can explain them to the satisfaction of the Court. The mere question as to whether the accused had anything to say after hearing the cross-examination of the prosecution witnesses is to my mind not a sufficient compliance with the provisions of the law. The question was considered by me in the case of Bhokari Singh v. Emperor 81 Ind. Cas. 199 : 5 P.L.T. 415 : (1924) Pat. 198 : 25 Cr. L.J. 711 : (1924) A.I.R. (Pat.) 791, and I adhere to the view expressed by me in that case. The same view was taken by the Rangoon High Court in the case of Maung Hman v. Emperor 77 Ind. Cas. 887 : 25 Cr. L.J. 487 : 2 Bur. L.J. 238 : 1 R. 689 : (1924) A.I.R. (R.) 172, and in the Nagpur Judicial Commissioner’s Court in the cases of Udhao v. Emperor 77 Ind. Cas. 593 : 25 Or. L.J. 417 : (1924) A.I.R. (N) 311, and Tani v. Emperor 48 Ind. Cas. 487 : 20 Cr. L.J. 12.
4. It is contended, however, by the learned Assistant Government Advocate that the sufficiency of the examination of an accused under Section 342 cannot be considered in revision and reliance has been placed upon the observations by Bucknill, J., in the case of Panchu Chaudhury v. Emperor 66 Ind. Cas. 73 : 23 Cr. L.J. 233 : 3 P.L.T. 549 : (1923) A.I.R. (Pat.) 91. In that case his Lordship observed: “I am not prepared, without very convincing authority, to say that it is well open in Revisional Jurisdiction of this Court to enquire into the sufficiency of the examination which has been made under the section. Indeed, it is freely admitted that it is impossible to lay down any very definite hard and fast rule and my own view is that this Court would not enquire, in Revisional Jurisdiction, into any such sufficiency, except possibly in very exceptional and special circumstances.” I am prepared to agree with his Lordship that where there has been an examination of the accused in compliance with Section 342 of the Cr. P.C. it may not be open to this Court in its Revisional Jurisdiction to enquire into the sufficiency or otherwise of the examination, but it must be shown that there was an examination of the accused as contemplated by Section 342. If there has been an examination of the accused as contemplated by Section 342, in other words in cases where the Judge or the Magistrate has put to the accused questions indicating the circumstances which from the prosecution evidence appear to be against him, it will not be open to this Court in revision to say that the Judge or the Magistrate ought to have put other questions and that the examination of the accused was not sufficient. But, where there has been no compliance at all with the provisions of Section 342, in other words where the circumstances appearing against the accused have not been put to him and he has not been called on to explain those circumstances, but a simple question has been asked as to whether the accused had anything further to say, such examination is not an examination as contemplated by Section 342. It was pointed out by Sir John Bucknill, J., in the case referred to that it can easily be seen that if it is to be said that a Judicial Officer must ask this or that question or this or that series of questions under the provisions of Section 342 of the Cr. P.C. the practical effect of the working of that section could be criticised in revisional applications on every possible, occasion, and his Lordship observed that where an accused was undefended, the Tribunal may well point out to him the elements of the evidence adduced against him which seems in his own interest to demand his explanation but where an accused was defended by a legal practitioner it would be altogether impossible to expect, or desirable to contemplate, a Tribunal entering upon a lengthy examination of an “accused person which might easily develop into a recounting of the history of the whole case or into, what would be far worse, some sort of cross-examination. I agree with these observations and hold that once it is shown that there has been a sufficient compliance with the provisions of Section 342 this Court will not enquire as to whether the Court had or had not put a certain question which ought or ought not to have been put. But, as I have said before, there must appear upon the record that the Court did examine the accused in the manner contemplated by Section 342. Once this is shown, I am of opinion that it would not be open to this Court in revision to enquire as to whether such examination was or was not a sufficient compliance with the: provisions of Section 342. In the present case, I am clearly of opinion that there has not been a proper compliance with the provisions of Section 342, and although it is not necessary to examine as to whether the accused persons have been prejudiced by such non compliance, it is clear from the judgment of the Sessions Judge himself that the accused persons have been prejudiced in the present case. The learned Sessions Judge observed in one part of his judgment as follows: “At the outset I should say that, neither in the examination of the appellants nor in the First Information, as per Ex. A, lodged by the appellant Ram Lakhan any attempt has been made or suggestion has been thrown to explain the injuries appearing on the person of Sitaram (son of the complainant. Harihar).” Now, this is clearly one circumstance appearing from the prosecution evidence against the accused and this circumstance at any rate was not placed before the accused by the Trying Magistrate. It may be that if the accused were asked to explain the circumstance they might have come forward with an explanation which might have satisfied the Magistrate.
5. Having regard to the view I have taken on the point of law, it is unnecessary to set out the facts of the case. In my opinion the trial became illegal at the point when the accused persons were not examined as required by the second part of Section 342 of the Cr. P.C. The conviction and sentences must be set aside and the case sent back to the Trying Magistrate to re-try the case from the point at which the trial became illegal, namely, after the cross-examination of the prosecution witnesses. If for any reason the case cannot be tried by the Magistrate who tried it in the first instance, the trial will have to begin de novo.