Full Judgment
Chandra Reddi, J.
1. This reference by the Sessions Judge of Goorg cannot be accepted for the following reasons. The irregularity that is said to have been committed by the Magistrate consisted in his failure to examine the accused under Section 349, Criminal P. C., after a court witness was examined. This court witness supported the defence version but the trial Court did not accept the evidence of this witness. Apparently the Magistrate did not question the accused under Section 342, Criminal P. C., as there was nothing to be explained by the accused in the evidence of the court witness who supported the defence version. So the failure to examine the accused under Section 342, in the circumstances cannot be said to have in any way prejudiced the accused.
2. In the order of reference, the learned Sessions Judge relying on the decision reported in Hooghly Chinsura Municipality v. Keshab, A. I. R. 1983 Cal. 347; (1983) Cri. L. J. 649 states that failure to comply with the provisions of Section 342, Criminal P. C. vitiates the whole trial and is not curable under Section 537, Criminal P. C. I am not able to agree with this opinion of the learned Sessions Judge of Coorg. In Kotayya v. Emperor, I. L. R. (1948) Mad. 1: (A. I. R. 1947 P. C. 67: (1947) Cri. L. J. 533, their Lordships of the Privy Council laid down that where it was established that there had been a breach of the proviso to Section 162 of the Code, which did not result in any prejudice to the accused in the circumstances of the case the irregularity was one which could be cured under Section 637, Criminal P. C. and the trial was valid notwithstanding the breach of that section. Their Lordships observe at page 11 as follows;
'There are no doubt, authorities in India which lend some support to Mr. Pritti's contention, and reference may be made to Tirkha v. Nanak : AIR1927 All350 in which the Court expressed the view that Section 537, Criminal Procedure Code applied only to errors of procedure arising out of mere inadvertence, and not to cases of disregard of, or disobedience to, mandatory provisions of the Code, and to In re Madura Muthu Vannian, 45 Mad. 820:A. I. R. 1922 Mad. 512: (1922) Cri. L. J. 124, in which the view was expressed that any failure to examine the accused under Section 342, Criminal Procedure Code was fatal to the validity of the trial and could not be cured under Section 537. In their Lordships' opinion, this argument is based on too narrow a view of the operation of Section 537.'
This decision of their Lordships of the Judicial Committee makes it abundantly clear that such an irregularity as is alleged to have been committed by the Magistrate in this case, is curable under Section 537, Criminal P C. unless it has occasioned failure of justice. In this case, it cannot be said that the accused was in any way prejudiced by the failure of the Magistrate to question the accused after the examination of the court witness. The object of examining an accused under Section 342, Criminal P. C. is to enable him to explain any circumstances appearing in the evidence against him. When the evidence given by a court witness is in favour of the accused it cannot be said that failure to put questions to the accused after the examination of that witness has occasioned failure of justice. In these circumstances I must hold that the reference cannot be accepted and the papers are sent back to the trial Court.