ORDER
1. This is a revision petition against the order of the learned Sessions Judge, Mysore, in Criminal Appeal No. 65/54 setting aside the conviction and sentence passed on the respondent-accused by the learned City Magistrate, Mysore, in C. C. No. 2635/53 and directing a re-trial.
2. The facts that have given rise to this petition are briefly as follows: The respondent was the accused in C. C. 2635/53 on the file of the learned City Magistrate Mysore, and he was convicted of offences under Ss. 482 and 420, I. P. C. and sentenced to undergo simple imprisonment for three months and also to pay a fine of Rs. 500/- and in default to undergo simple imprisonment for a further period of three months for the offence under Section 482, I P C and simple imprisonment for one month for the offence under Section 420, I. P. C. The respondent-accused appealed against this judgment, and the learned Sessions Judge set aside the conviction and sentence and remanded the case for retrial. As against that order, this revision petition is filed.
3. The main ground on which the learned Sessions Judge set aside the conviction is that the accused, has not been examined before the charge against the respondent-accused was framed as required under Section 342. Criminal P. C., that the procedure adopted by the learned Magistrate was highly defective not curable under Section 537, Criminal P. C and that the trial was vitiated by this omission. It is contended on the side of the petitioner that the view taken by the learned Sessions Judge is not correct. There appears to be considerable force in this contention.
4. In this case, eight P. Ws. have been examined in all. What has happened is that after examining four P. Ws. charges were framed against the accused and thereafter the learned Magistrate allowed the prosecution to examine four more witnesses. The entire evidence for the prosecution was closed on 8-7-54 and on 9-7-54 the accused was examined arid he also filed a statement in writing.
The contention urged on the side of the respondent-accused is, as stated already, that he should have been examined under Section 342, Criminal P. C. before the charges were framed and that the omission to do so is an illegality which vitiates the entire trial.
So, the short point that arises for consideration is whether in eases where a charge is framed before the evidence for prosecution is over, it is obligatory to examine the accused under Section 342, criminal P. C. and whether the omission in such cases to examine the accused before a charge is framed is an illegality or irregularity vitiating the proceedings. It appears to me that the finding of the learned Sessions Judge that such a procedure is highly defective not curable under Section 537, Criminal P. C. cannot be sustained.
5. No doubt, it is true that the accused was not examined before the charges were framed, in my opinion, it was not obligatory on the part of the learned Magistrate to examine the accused before he framed the charges inasmuch as the case for the prosecution was not closed by that time. Section 342 (1), Criminal P. C. runs thus:
'For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him the Court may, at any stage of any inquiry or trial without previously warning, the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.'
This section contemplates two stages at which an accused can be examined. Under the first part of Section 342(1), the Court may at any stage of an inquiry or trial put such questions to him as it considers necessary. The word 'may' used in the first part of this section goes to show that it is an enabling provision and that it is purely within the discretion of the Court to put such questions as it may consider necessary.
The use of the word 'shall' in the second portion of Section 342(1) clearly goes to show that the examination contemplated in that portion is mandatory, and. not merely discretionary. In other words, under the first portion the Court may at any stage of the inquiry or trial examine the accused, but it must do so after the evidence for the prosecution is over and before the accused is called upon to enter on his defence.
The section itself enunciates this principle and there may not be any need for going into the case law on this subject. If any authority for this proposition is wanted, the case reported in Rahim Sab v. Govt of Mysore, 2 Mys LJ 241 (FB) (A) and Deoji v. Emperor. AIR 1926 Nag 459 (B) may be perused. What is obligatory on the Court is to examine the accused after the evidence for the prosecution is closed and before he is asked to enter upon his defence. It makes no difference whether the examination takes place before or after the charge is framed provided the accused is examined after the evidence for the prosecution is completely closed.
In this case, the accused has been examined after the evidence for the prosecution was closed and before he was called upon to enter upon his defence. Under Section 342, it is not obligatory on the part of the Court to examine an accused before a charge is framed when the evidence for the prosecution,is not closed. Reliance was placed on the case reported in Honnuramma v. Suryanaranappa, 13 Mys LJ 295 (C), where it is held that the omission to examine an accused after the evidence for the prosecution has been let in and before framing the charge is an illegality which vitiates the trial.
In that case all the evidence for the prosecution was over and in spite of it, the learned Magistrate did not examine the accused under Section 342, Criminal P. C. It was not a case where a few witnesses were examined before the charge was framed and further evidence for the prosecution was adduced subsequently as in this case. Therefore that case cannot have any application to the facts of-the present case. Under these circumstances. I am of opinion that the order of the learned Sessions Judge cannot be sustained.
6. In the result, the order of the learned Sessions Judge setting aside the conviction of the respondent-accused and the sentence passed on him are set aside and so also the order of remand, and the learned Sessions Judge is directed to dispose of the appeal on merits in accordance with law.
7. Order accordingly.