Patna High Court
Tilak Gope And Ors. vs Bhaya Ram on 16 February, 1921
Equivalent citations: 62IND. CAS.870
JUDGMENT Bucknill, J.
1. In this matter it is admitted that the provisions of Section 342 of the Criminal Procedure Code were not complied with. After the accused had been examined by the Magistrate, one witness, at any rate, for the prosecution was subsequently examined. The Magistrate frankly admits that this was an irregularity, but says (quite possibly correctly) that his error did not really occasion any failure of justice. However, whether his view on that point is correct or not, it would seem that there is authority which is binding on me, to the effect that this omission to examine the accused after the case for the prosecution has been closed, or rather after all the witnesses for the prosecution have been examined, is a fatal defect and cannot be cured by trying to bring into operation the provisions of Section 537 of the Criminal Procedure Code. The case of Raghu Bhumij v. Emperor 68 Ind. Cas. 49 : 5 P.L.J. 430 : 1 P.L.T. 241 : 21 Cr. L.J. 705 appears to be a decision directly in point. The matter has also been considered in the case of Fernandez v. Emperor 59 Ind. Cas. 129 : 22 Bom. L.R. 1040 : 22 Cr. L.J. 17 : 45 B. 672.
2. I must not be taken to express my own personal view that the position which is created by the decisions to which I have referred is altogether a satisfactory one, but so far as I am concerned, I have no option save to give effect to what is at present here the law. The conviction, therefore, on that ground must be set aside; and there now arises the question as to whether under the circumstances it is really necessary or desirable that I should send the matter back for a re-trial. I think that on looking at this case from a broad point of view there is no doubt that there was a considerable dispute and some confusion as to the position of the parties who are a concerned in connection with the matter. Without, therefore, expressing any view as to the findings to which the Magistrate and the District Magistrate came, I would only say that the disturbance was not one of any serious character. It is true that the complainant did receive a number of injuries, but the Doctor says that they were slight, and although they may have caused him some pain, yet he was not severely hurt.
3. I understand that the accused has already been in prison for several days, and under those circumstances, I do not think it is necessary to send buck the case for further hearing.