Non-compliance with Section 342 of the Criminal Procedure Code can lead to the proceedings becoming illegal.

JUDGMENT

Rankin, J. - In my opinion, this case must be disposed of on the footing that there has not been a compliance by the Magistrate with the provisions of Section 342 of the Criminal. Procedure Code.

2. According to the order-sheet, the accused were property called upon to plead. That was on the 14th March 1922, and at that time they stated that they pleaded not guilty and also that they would both file written statements. The duty of the Magistrate u/s 342 is not in question at that stage. It arises when the witnesses for the prosecution have been examined, cross-examined and re-examined and, according to the order-sheet, that process was completed on the 12th April 1922, on which date the case was adjourned until the 25th for the purpose of the accused entering on their defence. It is quite clear that the promise to file written statements made at the time of the plea in no way exonerates or exempts the Court from examining the accused at a later stage as required by Section 342. There is no minute in the order-sheet to the effect that on the 12th April or on the 25th April anything purporting to be an examination of the accused, took place, nor is there any indication of the questions put and the answers obtained upon such examination. It appears from the report made by the Magistrate that, at the close of the prosecution case, he had discussions with the learned Counsel for the defence as to the number and nature of the witnesses the accused were going to call. It also appears from the Magistrate's report that he always understood and, so far as he now remembers, he was told, that the accused would file the written statements promised by them. In these circumstances the Magistrate has said in his report: "It will thus be seen that I did examine the accused and give them the fullest opportunity to make their statements. And they did so in their written statements filed on the 20th May 1922, when not only had the prosecution witnesses been cross-examined and re-examined but also their own defence been furnished."

3. Now, the first question which I have to address myself to, is the question whether there has been a compliance with the section. In this country it often happens that a prisoner is tried in a language which, for one reason or another, he understands but indifferently well and for that reason as well as for other equally grave reasons the intention of the Statute is that at a certain stage in the case the Court itself shall put aside all Counsel, all Pleaders, all witnesses, all representatives and shall call upon an individual accused, with the authority of the Court's own voice and take advantage of the opportunity which then arises, to state in his own way anything which he may be desirous of stating. In the case of an accused who is in no difficulty in understanding the proceedings, a question addressed to his Counsel in his hearing and answered by his Counsel in his hearing may. perhaps, be taken in certain circumstances as a compliance with the section. It is not a full compliance with the section: but I say nothing whatever to create any more trouble than is absolutely necessary in any case of that character. What is necessary is, that the accused shall be brought face to face solemnly with an opportunity given to him to make a statement from his place in the dock in order that the Court may have the advantage of hearing his defence if he is willing to make one with his own lips. Now, I cannot think that the fact that there was a discussion with Counsel about the number and nature of the witnesses is the same thing at all as what the section requires. It is important also to have regard to the time at which this examination took place. In the decided cases it has been pointed out that to ask an accused for his defence before he has the whole of the prosecution evidence in front of him, is not a compliance with the section. In my opinion, to ask the accused not at the beginning of his defence but later on