Trial vitiated due to non-examination of accused u/s 342.

This reference made by the Sessions Judge of North Malabar raises the question whether omission to examine the accused under section 342 of the Criminal Procedure Code who was permitted to appear by counsel under section 205, Criminal Procedure Code and whose counsel filed a statement on his behalf vitiates the trial.

The accused in the case was charged under section 323, Indian Penal Code, before a Bench of First Class Magistrates. In the course of the trial the first accused was granted exemption from personal attendance under section 205, Criminal Procedure Code, as he was employed as a Havildar Clerk at Bombay. The Bench Magistrates believed the prosecution evidence that the first accused along with the second accused caused simple hurt to P.W.1 and convicted the accused of an offence under section 323, Indian Penal Code.

Both the accused filed a revision petition before the Sessions Judge against the conviction and sentence passed upon them by the First Class Bench, contending that the conviction of the petitioners was illegal as the first accused was not questioned under section 342, Indian Penal Code. Accepting the contention of the petitioners the Sessions Judge has made this reference recommending the quashing of the conviction of the petitioners.

In support of the view that the non-examination of the accused under section 342 of the Criminal Procedure Code vitiates the trial and that the accused are therefore entitled to an acquittal he relies on a number of decisions which I will presently refer to.

Reference is made to Nataraja v. Devasigamani1. It has been laid down in that case by Sundaram Chetti, J., that failure to examine the accused under section 342, Criminal Procedure Code, after examination of the prosecution witnesses and before he is called upon to enter his defence vitiates the trial, as the provisions of section 342 which are mandatory should be strictly complied with. It has also been held that what is contemplated under section 342 is the oral statement of the accused and the filing of the written statement after the closing of the prosecution evidence does not amount to an examination within the meaning of section 342,. Criminal Procedure Code.

In Pramatha Math Mukerjee v. Emperor2, it has been held that non-compliance with the provisions of section 342, Criminal Procedure Code, vitiates the trial even when the accused is not in any way prejudiced and that it is the duty of the Magistrates to examine the accused under section 342, Criminal Procedure Code, after the examination, cross-examination and re-examination of the prosecution witnesses.

This decision is based upon a ruling of a Bench of that Court in Mazahar Ali v. Emperor3. At page 522 of the same report Rankin, J., observes:

“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.”

In In re Nainamalai Konan4, it is stated that an omission to question the accused generally on the case after the prosecution witnesses were examined makes the: conviction of the accused illegal and a written statement filed by the accused cannot be substituted for the examination of the accused under section 342, Criminal Procedure Code, which is mandatory.

In Mahomed Hussain v. Emperor1, it has been laid down that section 263, Criminal Procedure Code, is governed by section 342 and that there must be an examination of the accused in all warrant cases and that the words if any in section 263 do not apply to warrant cases.

In Karamdin v. The Crown2, Tek Chand, J., laid down that section 342, Criminal Procedure Code, would apply to summons cases also and that non-compliance therewith would be fatal to the trial o