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10. It may be taken as settled law that the omission to examine the accused under Section 342, Criminal Procedure Code generally on the case after the prosecution witnesses have been examined is an illegality and not an irregularity, which vitiates the whole trial. Two questions have to be settled in this case. The first is, when should the examination of the accused take place in order to comply with the mandatory provisions of Section 342, and the second, whether the examination prior to the close of. prosecution case will fulfil the requirements of Section 342. The first clause of Section 342 consists of two portions. The first is optional with the Court and the second is obligatory on the Court. The first portion runs as follows: "For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused put such questions to him as the Court considers necessary, "and the second," (The Court) shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. "The non-compliance with the first portion does not render a trial illegal or the proceedings irregular; and under the second portion it is the duty of the Court to question the accused, and that after the witnesses for the prosecution have been examined and before he is called on for his defence. Chapter XX of the Criminal Procedure Code relates to the trial of summons cases by Magistrates, Chapter XXI relates to the trial of warrant cases by Magistrates, Chapter XXII relates to summary trials, and Chapter XXIII relates to trials by High Courts and Courts of Session. Under Section 245, the Magistrate may, if he thinks fit, examine the accused, but he is not bound to do so. Under Section 253, the Magistrate may examine the accused if he thinks necessary. Section 342 is in the Chapter containing general provisions as to inquiries and trials. Under Section 209, which is in the Chapter relating to inquiry preliminary to commitment, the Magistrate may if he thinks necessary" examine the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him. "Section 342 makes the examination of the accused obligatory only in cases where the accused is called on for his defence. A Magistrate may discharge an accused without framing a charge, in which case his non-examination would not vitiate the proceedings. But where a Magistrate, or Judge in a sessions trial, finds that the prosecution has made out a case which the accused has to meet then it is incumbent upon the Magistrate or Judge to question the accused generally on the case for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him. It may be taken that the stage at which the examination is to be held is before the accused is called on for his defence. In the chapter relating to the trial of warrant cases, provision is made in Section 254 for the framing of a charge against the accused before the whole of the prosecution evidence is completed, if there is ground for presuming that the accused has committed an offence triable under the Chapter: "The difficulty in interpreting Section 342 is caused by the amendment to Sections 254 and 256, which were made in the Criminal Procedure Cade of 1898. Under the Code of 1882," under Section 252 the Magistrate was required to "take all such evidence as may be produced in support of the prosecution," and under Section 254, "If when this evidence and examination have been taken and made, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, he should frame a charge in writing against the accused." Under the Code of 1882 therefore the Magistrate could not frame a charge against the accused till the evidence for the prosecution was completed. Under the Code of 1898 the Magistrate could frame a charge before the prosecution evidence is completed if he thinks there is ground for presuming the accused has committed an offence. Under Section 256 of the old Code after the charge was framed the accused had the right to cross-examine any of the witnesses for prosecution present in Court or its precincts. But under Section 256 of the Code of 1898" the duty was cast upon the Court to ask the accused whether any of the prosecution witnesses should be recalled for cross-examination. He has, therefore, an undoubted right to have all or any of the prosecution witnesses recalled for cross-examination after the charge is framed and after he exercises such right the evidence of any of the remaining witnesses for prosecution should be taken and after cross-examination and re-examination they should be discharged. So then, if a Magistrate frames a charge against the accused before the examination of all the prosecution witnesses is over, he shall ask the accused whether he wishes to recall any or all the prosecution witnesses for cross-examination, and after such cross-examination he shall take the evidence of the remaining prosecution witnesses. It is only after that, that the accused shall be called upon to enter upon his defence and he can be said to enter upon his defence only when he begins to adduce evidence on his behalf. The contention that, if an accused person cross-examines any of the prosecution witneses under Section 256, the Magistrate is bound once more to examine the accused generally on the case seems untenable. Section 342 says" the Court shall question the accused after the witnesses for the prosecution have been examined and before he is called on for his defence." That can only mean that the examination of the accused should take place after the prosecution has placed its whole case before the Court. If the accused chooses not to cross-examine or reserves his right to cross-examine the prosecution witness after a charge is framed, I do not think the Magistrate is bound to question him after cross-examination of the prosecution witnesses is over, provided he questions him after the prosecution has placed its whole case before him. If the Magistrate frames a charge before the whole of the prosecution evidence is placed before him, he should examine the accused under Section 342 after the remaining witnesses for the prosecution have been examined and cross-examined. The accused in a warrant case has three opportunities of cross-examining the prosecution witnesses once before the charge is framed, secondly under Section 256 and thirdly after he has entered on his defence. He can apply to the Magistrate under Section 257 to issue process for compelling the attendance of one or more prosecution witnesses for cross-examination. It cannot be the intention of the legislature to make it obligatory on the Magistrate to question the accused if he chooses to cross-examine any of the prosecution witnesses after all the defence evidence has been taken. Such cross-examination could only be to help him in his defence, and therefore it must be taken that such cross-examination is part of his defence. The words in Section 342 are, "after the witnesses for the prosecution have been examined," and the expression cannot reasonably be interpreted to mean "after the accused has chosen to exercise his right of cross-examination at the very end of his defence." If the prosecution applies to the Court to allow it to adduce fresh evidence after, the charge is framed and if such evidence is adduced, then it is the duty of the Court under Section 342, to question the accused generally, for, it cannot be said that the witnesses for the prosecution have been examined till the whole of the prosecution case is before it. But where the prosecution has let in all the evidence it wishes to rely on, and if the Magistrate questions the accused after taking all such evidence before framing a charge, whether the accused has cross-examined the witnessees or not, I think the mandatory provisions of Section 342 must be held to be substantially complied with. It therefore follows that any examination of the accused, which is made before all the evidence for the prosecution has been let in cannot satisfy the mandatory provisions of Section 342.

25. The words used in Section 342 are "called on for his defence." I may notice in this connection two other sets of words. Section 255(1) runs thus: The charge shall then be read and explained to the accused and asked whether he has "any defence to make." Section 256 contains the following sentence:

Accused shall then be called upon to enter upon his defence and produce evidence. "In my opinion the words in Section 342" called on for his defence "are used in the same sense as the words" to enter upon his defence "in Section 256. I must point out that neither side has attempted to argue that the stage when the accused should be examined under Section 342, is after the charge has been framed, read and explained and before the accused is asked under Section 255 whether he has" any defence to make. "The rival contentions before us were (1) on behalf of the Crown the examination indicated in Section 342 should be made after the taking of the evidence in support of the prosecution mentioned in Section 252 and before the framing of the charge Under Section 254; (2) on behalf of the accused the said examination should be made after the entire evidence for the prose-cution mentioned in Section 256 is given and before the accused is called upon to enter upon his defence. I am clearly of the opinion that the right construction is that contended for on behalf of the accused. If the other construction were right, it would follow that the accused would be "called on for his defence" before a charge against him is framed, that is, at a point of time which is anterior to his being asked whether he "has any defence to make." I see no warrant for this position in the sections to which I have referred.

26. I have so far given my reasons for construing the section in the manner I have done. The learned Public Prosecutor has argued that this interpretation should be avoided, as it would lead to consequences inconvenient and unjust. I think, on the contrary, this construction alone carries out the object underlying the enactment of Section 342.

27. Under Section 342 it is only one examination that is made imperative. The other view will lead in certain events to the result that the Court will be bound to have a double examiriation of the accused; once when the evidence referred to in 8. 252 has been taken and again when further witnesses for the Crown, if any have been examined under Section 256. Moreover, the object of Section 342 can be most effectually carried out, only if the accused is examined at the very close of the case for the Crown and previous to his entering upon his defence. Not only may very material evidence be given in examination-in-chief of any further witnesses examined under Section 256 but matters unfavourable to the accused may be elicited in the cross-examination and re-examination of the witnesses already examined under Section 252.

31. It seems to me that this view alone makes Section 342 consistent with Section 253. Otherwise the words in the latter section vesting a discretion in the Magistrate " Of making such examination (if any) of the accused as the Magistrate thinks necessary" will be not only redundant but positively misleading because, at that point, the Magistrate, according to the other view, is under an obligation to examine the accused.

32. It has been said on behalf of the Crown that Section 257 lends some support to the view contrary to what I have taken. I am unable to agree. It is no doubt true that Section 257 gives a further opportunity to the accused to cross-examine any prosecution witnesses even after he has entered upon his defence. But this circumstance can have no bearing upon the right interpretation of the terms of Section 342. The latter section fixes a point of time not only with reference to the examination of the witnesses for the prosecution but also with reference to the accused being" called on for his defence. "The mere fact that some prosecution witnesses may be cross-examined at the instance of. the accused even after he has entered upon his defence cannot alter the interpretation which the plain words in Section 342 should receive.