An accused who has been examined in chief as a defense witness cannot refuse to take oath and offer himself for cross-examination.

S.P.Singh, J.

1. The petitioner, Jihachh Shah, of village Deorh, police station Phulparas, district Darhhanga, has come up in revision against the order dated the 30th September, 1961, passed by the Additional Sessions fudge of Darbhanga, dismissing the appeal of the petitioner against his conviction and sentence under Sec.178, I P. C, passed by the Munslf Magistrate, First Class. Madhubani.

2. It appears that the petitioner was an accused in a case under Sec.323, I. P. C. pending in the Court of the Munsif Magistrate, Madhtibani. After the close of the prosecution case and his examination under Sec.342, Cr, P. C., he filed a petition in writing on 11-1-61 before the Magistrate for his examination as a defence witnessn order to prove certain facts and documents. His grayer was allowed and he was examined in chief on that date. On the following day, i.e., on 12-1-61 he refused to come to the witness box and take oath and offer himself for cross examination. He disobeyed the order of the Court in this regard and in consequence thereof the learned Magistrate proceeded against him for the commission of an offence under Sec.178, I. P. C. He convicted and sentenced him to pay a fine of Rs. 100 and in default to undergo simple imprisonment for a period of ten days. His appeal against the order of his conviction and sentence was dismissed by the Additional Sessions Judge, as stated above.

3. Mr. J. N. Verma, appearing for the petitioner has urged in this Court that the learned Magistrate was not justified in convicting the petitioner under Sec.178, I. P. C. inasmuch as he himself had committed certain errors in recording the deposition of the petitioner on 11-1-61 and he refused to correct the same in spite of the petitioners request. That being so, the petitioner was justified in not going to the witness box on the following day for his cross examination. Mr. Vermas further argument is that the petitioner being an accused in the case it was open to him to withdraw from the witness box at any time during the course of his examination as a defence witness and the trial Court could not insist on petitioners cross examination or his taking oath. On behalf of the State it has been contended that under the new provision of Sec.342A, Cr. P. C. no doubt an accused cannot be called as a witness except on his own request in writing, but if he has made a request for his examination and his request has been accepted by the Court, he cannot withdraw from the witness box at his sweet will after his examination in part. Learned counsel for the State has, therefore, urged that the refusal of the petitioner in his case to take oath and offer himself for cross examination in spite of the direction of the Court clearly amounted to an offence under Sec.178, I. P. C. and is such the procedure followed by the learned Magistrate in convicting and sentencing the petitioner under Sec. 480, Cr. P. C. read with Sec.178, I. P. C. cannot be said to be illegal.

4. Sec.342A, Cr. P. C. reads as follows:

"Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial.

Provided that-- (a) he shall not be called as a witness except on his own request in writing; or

(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial."

The aforesaid provision clearly indicates that an accused becomes a competent witness as soon as his request for his examination as a defence witness is accepted by the Court and after that he is in the same position as any other witness. When he exercises his option to depose as a witness, he waives his right as an accused and subjects himself to the same rules applicable to other witnesses and he cannot be excuse