Rankin, J.
1. The petitioner is a driver in the employ of the Calcutta Tramways Coy. Ltd. He has been convicted by the Additional Chief Presidency Magistrate tinder Section 279 of the Indian Penal Code for rash and negligent driving and has been sentenced to pay a fine of Rs. 100. Half of the fine has been ordered to be paid to a person injured by the negligence of the petitioner.
2. The present Rule was issued on the sole ground that Section 342 of the Criminal Procedure Code was not complied with. The Magistrate in his explanation states that Section 342 was not complied with because the case was a summons case and cites the decisions of a Full Bench of the Madras High Court Ponnusamy Odayar v. Ramasamy Thathan A.I.R. 1924 Mad. 15 and Dharma Singh v. King-Emperor A.I.R. 1924 Mad. 30 for the view that Section 342 does not apply to a summons case whether it be tried summarily or in the ordinary way.
3. In this Court convictions have in summons cases been set aside for failure to comply with Section 342 : Gulzari Lal v. Emperor A.I.R. 1923 Cal. 164; Surendra v. Isamaddi : AIR1925Cal480 but we have not been referred to any case in which the applicability of the section to summons cases has been argued or the Madras decisions canvassed.
4. The Bombay High Court has in two cases held that the section applies to summons cases : Emperor v. G.S. Fernandez [1920] 45 Bom. 672; Emperor v. Gulabjan A.I.R. 1922 Bom. 290, and this appears to be the prevailing view in provinces other than Madras.
4. Section 342 occurs in Chapter 24 which is headed 'General Provisions as to Inquiries and Trials.' Some of the sections in this chapter are not in accordance with a strict interpretation of the heading in respect that they do not deaf with matters which either must or may arise in the course of any enquiry or trial (cf. Sections 349, 350, 350A). Others deal with questions which are in nature general (e.g. tender of pardon to accomplice, compounding of offences) but permit of the specified procedure in particular cases only (cf. Sections 337-339A, 345). Others however appear to be quite general and to be so expressed (exemptions or exceptions being made as necessary). The right to be defended by a pleader (Section 340), the rights of an accused who cannot be made to understand the proceedings (Section 341), the right to be free of undue influence by threat or promise (Section 343), the power of remand (Section 344), detention of offenders attending Court (Section 351), Courts to be held in public (Section 352) - these are all 'General provisions as to enquiries and trials' in the fullest sense of the phrase. The language in several of these sections is of studied generality (e.g. any person accused of an offence before a criminal Court) (Section 340, cf. Sections 351, 352) and it is appropriate to the subject-matter. They are intended as general provisions - not merely as miscellaneous provisions.
5. Taking Chapter 24 for the moment by itself it must I think be conceded that Section 342 has all the notes of generality. The language is 'the Court may, at any stage of any inquiry or trial.' The subject-matter of the opening phrase - 'Power to examine the accused' is undoubtedly general : it asserts a principle which is in marked contrast with a fundamental principle of the common law of England under which no Court could examine an accused. It is here and here only that we find it stated that no oath shall be administered to the accused, that he cannot be punished for not answering, that a charge of perjury cannot be brought upon his answers.
6. The history of the section - if this be relevant - detracts in no way from the force of these considerations. It was given by Jwala Prasad, J., in the case of Raghu Bhumij v. The King Emperor [1920] 5 Pat.L.J. 430.
In the earlier Acts, the examination of the accused person was discretionary with the Court : vide Section 373 of Act 25 of 1861 and Act 8 of 1869. In Act 10 of 1872 while the discretionary nature of the examination was retained so far as enquiries and trials of cases other than Sessions cases were concerned, it was made compulsory for Sessions trials. Section 250 of that Act occurred in the chapter relating to Sessions trials and ran as follows:
The Court may from time to time at any stage of the trial examine the accused person and shall question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.
In 1882 the provisions relating to the examination of an accused parson which were scattered in different chapters in the previous Acts, were removed from those chapters and brought under one chapter headed 'General Provisions Relating to Enquiries and Trials.' Section 250 of Act 10 of 1872 was therefore removed from the chapter relating to Sessions trials but its provisions were embodied in their entirety in Section 312 of the Code of 1882 as well as in 1898.
7. What then is the contention to be? Is it that no part of Section 342 applies to summons cases or merely that the last clause of Sub-section (1) does not apply. I am not quite sure which doctrine is affirmed by the Madras decisions but I think it is the former; though the reason given for it is the inapplicability of the closing words of the sub-section.
8. In either case it appears to me that there is really one argument upon which everything turns, and the other arguments collapse without it. Of a contested summons case, Section 244 says that
the Magistrate shall proceed to hear the complainant (if any), and tike all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.
9. In a warrant case after charge framed and after the last prosecution witness has been cross-examined and re-examined, Section 258 says : 'The accused shall then be called upon to enter upon his defence and produce his evidence.' Of Sessions cases Section 289 says:
When the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded the accused shall be asked whether he means to adduce evidence.
10. In Sub-section 4 the Code says that 'the Court shall call on the accused to enter on his defence' and the context shows what this means. It means that if hecalls no witnesses the accused (or his pleader) is to make his final address to the Jury : if he is calling witnesses he may open his case and proceed to call them.
11. It is to these sections that Section 342 has to be applied. Its words are:
and shall question him - generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.
12. I do not collect that any shadow of difficulty is imposed to surround the phrase 'after the witnesses for the prosecution have been examined.' These exact words do not occur in Section 244, Section 256 or Section 289 but they refer without any ambiguity whatever to a definite stage in any kind of trial, and their equivalent in the sections mentioned leaps to the eye. In these circumstances there seems little room for any further difficulty but it is said - if I follow the argument - -that there is a significant precision of language-in the words 'before he is called on for his defence.' This it is said has a definite meaning both in Section 289 and Section 256 but in Chapter 20 the expression is not used. 'The prisoner in these cases does-not enter on his defence' but the Magistrate is bound to 'hear the accused' (per Schwabe, C.J.) : in Ponnusamy v. Ramasamy A.I.R. 1924 Mad. 15.
13. The argument appears to me to be unsubstantial. There is no such exact identity of phrase as could make Section 342 short circuit with Sections 289 and 256 to the exclusion of Section 244. The phrase is 'called on for his defence.' The words of Section 256 are 'called upon to enter upon his defence'; in Section 289 'call on the accused to enter on, his defence.' The similarity of phrase is apparent and there is no such similarity in Section 244 but that is all; and there can be no question of significant precision. The Legislature has not hit upon a general expression equidistant from all three sections in point of variation of language. But as Mullick, J., observed in Raghu Bhumij v. The King-Emperor [1920] 5 Pat.L.J. 430, a case already cited:
if it is argued that in a summons case the accused is never 'called on for his defence' the reply seems to be that there is no virtue in these particular words and the accused in a summons case is called on for his defence after the prosecution is closed just as much as an accused in any other case.
To call upon an accused person to enter upon his defence is a necessary incident of every trial.
14. Per Crump, J., in Emperor v. S.S. Fernandez [1920] 45 Bom. 672. Macleod, C.J., has taken the same view : Emperor v. Gulabjan A.I.R. 1922 Bom. 290. There is every reason to suppose that the words are used as ordinary English and there is independent reason to presume that the provision is a general provision. The function of the concluding words of Sub-section 1 of Section 342 is to point to a definite stage of every trial. For this purpose it is natural enough to use rather more informal language than seems to be called or when describing the procedure in summon case. Thus, although in summons cases there is no formal charge and Chapter 20 says nothing about 'plea' or 'pleading guilty,' the legislature when in Section 263 (cf. Section 262) it has occasion to refer to this stage when dealing with summary trial both of summons cases and of warrant cases, vises the words 'the plea of the accused,' In the same way Section 342 uses the phrase 'called on for his defence' - not only without any special or limited intention but in a chapter which is expressly devoted to general provisions and in a section which refers to 'any stage of any inquiry or trial.'
15. I do not here discuss whether if Section 342 applies to any case a failure to comply with it can be condoned under Section 537. Nor do I discuss whether if in Warrant cases, or in Sessions cases it is purely discretionary for the Court to examine or not to examine. These questions are concluded by authority binding upon me.
16. Confining myself to summons cases, I would observe that the argument from the repealed Section 451 has been answered by Oldfield, J., in Ponnusamy v. Ramasamy A.I.R. 1924 Mad. 15 that Section 242 applies to a stage and a purpose different from Section 342; and that the words 'if he thinks fit' in Section 215 do not necessarily mean more than that an accused can be acquitted without being examined. Section 245 is very similar in language to Section 209 and Section 253 but it has not quite the same purpose. The governing idea, is that in summons cases the matter should be finally decided (save in cases under Section 249). It should proceed to a conviction or acquittal - not merely end in a discharge. Apparently Section 245 has been held to mean that a man cannot be acquitted until after he has been heard and after he has produced all his evidence Kesri v. Muhammad Bukhsh [1896] 18 All. 221 which seems a little marvellous. If this be right, (which I take leave to doubt) then when the case against the accused breaks hopelessly down - I presume the really correct procedure must be to tell the accused that if he holds his tongue he will be acquitted but that if ho will insist on defending the case further he may be convicted on any charge triable as a Summons case that may turn up before the case is over.
17. If 'the evidence referred to in Section 244' is not a phrase used by mistake for
the complainant if any and all such evidence as may be produced in support of the prosecution,
and if it really means that the accused must be asked to call his evidence even though there is no case to answer, then the words 'if he thinks fit' do raise a difficulty. But on the common sense of the matter and even on the strict construction of the section it seems reasonably clear that the words 'if he thinks fit' have reference in this section to cases in which the Magistrate is prepared to acquit without examining the accused, That he can convict without examining the accused is an inference from the dubious proposition that he cannot acquit without hearing all such evidence as the accused requires him to hear. Sections 109 and 253 may I think be looked at to explain what is meant by the words 'if he thinks fit' in Section 245. They all refer to cases where it is unnecessary to give an opportunity to an accused to explain any circumstances appearing in the evidence against him because the case against him is going to be stopped then and there. (The effect of the words 'if any' in Section 289 is a different question).
18. My main criticism of the decision in Ponnusamy Odayar v. Ramasamy A.I.R.1924 Mad. 15 is that it fails to appreciate that on the face of the Criminal Procedure Code every reference to any examination or possibility of an examination of an accused person by the Court is a reference to Section 342. Before 1882 the Code was different. But now Section 342 is the enabling section - it is the section which explains the purpose for which and the terms on which any accused can be examined by the Court at all. It confers a power which may be exercised at any stage. It is presupposed in. Chapter 20 as in Chapter 18, Chapter 21, Chapter 22 and Chapter 23, and these are the only chapters to which its direct reference can be primarily intended. With all respect I think it impossible to maintain that p. 342 has no reference whatever to Summons cases. If the question be as to the applicability of the concluding words of Sub-section (1), then I think the Madras High Court applied a test which is inadequate when it said:
It must be applied to all oases unless the special sections dealing with particular cases indicate that it is not intended to apply to them or unless the words of the section itself give such indication.
19. Ponnusamy v. Ramasamy A.I.R. 1924 Mad. 15. The concluding words of the sub-section must have effect like the other words in the absence of an express exception or of an exception to be implied from a specific provision clearly inconsistent therewith unless indeed the words as applied to Summons cases are insensible or at least markedly inapt.
20. In the present case the Rule must be made absolute and the case must be re-tried by a Magistrate to be nominated by the Chief Presidency Magistrate.
21. The fine, if paid, will be refunded.
Duval, J.
22. I agree.