JUDGMENT

1. These applications for revisions both depend on the same point. The applicants have been found guilty under Section 447, I.P.C., and ordered to pay a fine of Rs. 25 each in each case. The eases were tried summarily. Being summons cases the procedure for summons cases had to be followed. In each case the procedure was the same, The Magistrate explained to them the particulars of the offence and took a short statement from them. They did not merely plead not guilty, but gave a very short summary of their defence. After this witnesses for the prosecution were examined and the case was put over for argument. At the next hearing of the case, the accused's advocates were heard, and then orders were passed. It will appear that the accused were never examined after their initial statement had been taken. Their advocate was heard at the close of the prosecution evidence but that is all. The question which arises is:

Does Section 342, Criminal P.C., apply to summons cases?

2. Section 342, Criminal P.C. is a mandatory section.

* * * * the Court may, at any stage of any inquiry or trial, * * * put such questions to him (accused) as the Court considers necessary and shall * * * question him generally on the case after the witnesses for the prosecution hive been examined and before he is called on for his defence.

3. There is ample authority that a failure to comply with Section 342, Criminal P.C. when it is applicable will vitiate a trial. With regard to whether Section 342 applies to summons cases or not, there is marked difference of opinion among the High Courts. In 1920 a Bench of the Bombay High Court in Emperor v. D.S. Fernandez A.I.R. 1921 Bom. 374 held that Section 342 applies to a summons case. In 1921 a Bench of the Patna High Court in Gulam Rasul v. Emperor A.I.R. 1921 Pat. 11 followed the Bombay ruling, and in 1922 a Bench of the Calcutta High Court in Gulzarilal v. Emperor A.I.R. 1923 Cal. 164 came to the same conclusion. In 1923 however a Bench of five judges of the Madras High Court in the case of Ponnusamy Odayar v. Ramasamy Thathan A.I.R. 1924 Mad. 15, after considering all previous rulings, held that the mandatory provision of Section 342, Criminal P.C., does not apply to trials in summons cases, and it would appear that the High Court of Lahore puts the same interpretation on the section as the Madras High Court, for, though I am not able to find any officially reported ruling of that Court, there is a ruling Kale Khan v. Emperor A.I.R. 1927 Lah. 268, in which it is stated, though no reason is given, that Section 342, Criminal P.C., does not apply to summons cases. The date of the ruling is 1926. This High Court does not seem to have published any ruling on the point, but before this Court came into existence, the opinion here seems to have been that Section 342 does apply to summons cases: vide Emperor v. Kyan Baw 1903. 2 L.B.R. 239 and Emperor v. Nga Pa Mya 1917. 3 U.B.R. 18. This latter case being a case of trespass on land was clearly a summons case. In view of the importance of the matter and the divergency of opinion between different High Courts, I would refer for a decision of an ordinary or a Full Bench, as the Hon'ble the Chief Justice may direct, the following question:

Does Section 342, Criminal P.C. apply to the trial of summons cases?

OPINION

Page, C.J.

4. The question propounded is

Doss Section 349, Criminal P.C., apply to the trial of summons cases?

5. This is a matter upon which the Courts ought not to have expended time and consideration. Apparently the simple question is whether at the trial of a summons case the Magistrate "must" or "may" examine the accused under Section 342. Yet the material sections of the Criminal Procedure Code are so ill drafted that the answer is obscure and doubtful. It appears to me, having regard to the procedure laid down for the trial of summons cases, that it is quite unnecessary to make such an examination compulsory, as it is provided that at least on two occasions dur