The accused's fundamental right to be examined at different stages of the trial is fundamental and failure to allow this can affect the validity of the trial.

Oldfield, J.

1. This reference, made by the Additional District Magistrate, Tanjore, at the instance of the accused in C.C. No. 365 of 1920 on the file of the Stationary Sub Magistrate, Tanjore, raises two questions (1) whether the latters procedure in examining the accused in this, a warrant case, only before charge was framed and not also after the prosecution witnesses had been recalled for further cross examination under Section 256(1) Criminal Procedure Code, was correct, (2) if it was not, whether there was an illegality vitiating the trial or an irregularity, on account of which we can in the exercise of our discretion refuse to interfere in revision.

2. The accused are not represented before us. But we have had the advantage of a very full and careful argument from the learned Public Prosecutor. The first provision relating to the examination of the accused in a warrant case is Section 253 Cr.P.C. which provides that he shall be discharged. "If, upon taking all the evidence referred to in Section 252" that is the evidence of the prosecution witnesses "and making such examination (if any) of the accused as the Magistrate thinks necessary" he finds that no case has been made out which would warrant a conviction and Section 254 directs in the contrary event the framing of a charge and Section 255 the taking of the accuseds plea. But, as the words "if any" and "as he thinks necessary" show the examination at this stage depends on the option of the Magistrate; and to ascertain at what stage an examination is obligatory, we must turn to Section 342, one of the general provisions relating to enquiries and trials under which "the court shall for the purpose aforesaid" (of enabling the accused to explain any circumstances appearing in the evidence against him) "question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. It is on this provision that accuseds contention is founded their argument being that they were entitled to be questioned, after the examination of the witnesses had been completed by their further-cross-examination after charge.

3. It has been suggested before us that, as Section 253(1) makes no explicit reference to cross-examination before the charge and the first such reference to it occurs in Section 256(1) the stage, at which it should ordinarily take place is after a charge has been framed, But this is unsustainable, because the wording of Section 253 is identical with that of the corresponding section of the Code of 1882, in which there was no provision for further cross examination similar to that in the present Section 256; and it is unnecessary to assume that the insertion of that provision was intended to alter the meaning of a section, which was left unchanged. The better and the sufficient ground for acceptance of accuseds contention is that the examination of a witness cannot be regarded as completed until the last stage at which the law authorizes its continuance has been passed. This, as explained in Mitajit Singh v. Emperor (1921) 63 I.C. 825 is as easily reconcilable with the description of the course of a witnesss examination in Section 137 Indian Evidence Act as any other supplementary cross examination, which the court may for special cause allow.

4. We have however to deal with the ambiguity involved in the specification in Section 256(1) of the stage before which further cross-examination is to take place as "before the accused is called on to enter on his defence", because that may most simply and easily be understood as equivalent to "before the framing of the charge". The use of the same words in Section 289 in connection with the essentially different procedure at a Sessions trial suggests no solution of the difficulty. It is true that in Sections 255 and 256(1) the various stages, (1) the recording of the charge (2) the taking of accuseds plea (3) the recalling of the prosecution witnesses and their fur