Inadequate examination under Section 342 of the Code of Criminal Procedure does not automatically vitiate the trial; prejudice or miscarriage of justice must be shown.

K.Sahai, J.

1. All the four petitioners have been convicted under Sec. 430 of the Penal Code, and each of them has been sentenced to pay a fine of Rs. 100.00 or, in default, to undergo rigorous imprisonment for three months.

2. It appears that some of the petitioners have been fighting about the existence of a karha (water channel) for irrigation of some agricultural lands from a canal. In 1949, the canal authorities took steps for acquisition of the site of that karha. After acquisition of the land, the karha began to be reconstructed, and the reconstruction was completed on 25-7-1955.

3. The prosecution case is that the petitioners demolished the karha, or, at least, a major portion of it, on 1-8-1955, in the morning and transplanted paddy at the place. The canal authorities made enquiries, and thereafter the Canal S. D. O. (P. W. 5) submitted a report (exhibit 1) at the Nasriganj Police Station. That report was treated as the first information report. The defence case of the petitioners is that they are innocent, and that they did not demolish the karha.

4. The Courts below have held that the petitioners demolished the karha, and transplanted paddy in the place. These are findings of fact. But the point which Mr. K.B.N. Singh has raised on behalf of the petitioners is that the trial has, in this case, been vitiated. His first contention is that the trial has been vitiated because there has been an inadequate examination of the petitioners under Sec.342 of the Code of Criminal Procedure, and, in any case, the petitioners were not examined under that section after a new charge was framed against them on 4-4-1956.

His second contention relates only to petitioner Gaya Singh, It appears that this petitioner is deaf and dumb. The argument which Mr. K.B.N. Singh has advanced is that the procedure laid down under Sec.341 of the Code of Criminal Procedure, should have been followed in his case.

5. I proceed to consider the points raised by Mr. K. B. N. Singh in the order in which I have mentioned them above. The trying Magistrate originally framed a charge on 21-11-1955, against the petitioners for an offence under Sec. 431. The trial proceeded, and the prosecution evidence was closed on 23-2-1956.

6. On the same date, the trying Magistrate examined the petitioners under Sec.342 of the Code of Criminal Procedure. On 4-4-1956, the learned Magistrate considered a petition filed by the Prosecuting Inspector in which he prayed for a charge for an offence under Sec. 430 being framed against the petitioners. The trying Magistrate acceded to this prayer, and framed a charge accordingly. He then gave an opportunity to the defence lawyer to cross-examine the prosecution witnesses, if he so liked.

The defence lawyer, however, declined to cross-examine any prosecution witness. Hence, the Magistrate adjourned the case to the next day, that is, to 5-4-1956, for arguments, and he actually heard arguments on that date. He did not examine the petitioners under Sec.342 after addition of a new charge on 4-4-1956.

7. Mr. K.B.N. Singh has drawn my attention to the statement of the petitioners recorded on their examination under Sec.342, and there can be no doubt that their examination was inadequate. A judgment cannot, however, be set aside merely on account of inadequate compliance with Sec.342 of the Code of Criminal Procedure. It has to be shown that prejudice has been caused to the accused who were not properly examined under Sec.342, and that there has been a miscarriage of justice (vide Moseb Kaka Chowdhury V/s. State of West Bengal, (S) AIR 1956 S. C. 536 (A).

It has not been shown before me in this case that any prejudice has been caused to the petitioners on account of their inadequate examination or that any miscarriage of justice has resulted. Mr. K. B. N. Singh has only submitted that the charge for an offence under sec. 431 could only succeed against the petitioners if it had been proved that a navigable channel had been rendered i