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Criminal Appeal No. 42 of 1954, decided on 8th December, 1954,
(On appeal from the judgment and order of the Dacca High Court, dated the 24th November, 1953, in Criminal Revision No. 427 of 1953).
S 342. Object‑Accused should be given notice of points which he must meet in order to exonerate himself.
The real object of section 342 is not to subject the accus ed to a detailed cross‑examination. It is, as a matter of fact, inviting his attention to the point or points in the evidence which are likely to influence the mind of the Judge in arriving at conclusions adverse to the accused, and before such. an adverse inference can be drawn, the accused should be afford ed an opportunity to offer an explanation, if lie has any.
Where "the circumstances appearing in evidence against him" are not put to the accused arid his explanation is of taken thereupon,: it cannot be said that the purpose of section ,342 has been fulfilled. it is not a mere formality, but is an essential part of the trial that the accused should be given notice of the point or points which he must meet in order to exonerate himself.
20 Cr. L J 12 (Nag.), 52 Cal. 522 ref.
, S. 537‑‑5. .342 not complied with‑‑No miscarriage or failure of justice‑Irregu larity is curable under S. 537.
The accused was literate and could very well follow, the nature of the proceedings against him, and was also aware of the prosecution case. Since no miscarriage or failure of justice had been proved section 537 of the Cr. P. C. covered the case.
S. Modaoris Ali, for Appellant.
S. R. Pal, instructed by Abdul Hye, Attorney, for Respon dent.
Date of hearing : 8th December, 1954.
.‑Abdul Wahab was convicted under section 409 of the P. P. C. for having misappropriiated Rs.808‑13‑3 and sentenced .to one year's. rigorous imprison ment and a fine of Rs. 1,000, or in default; to further six months' rigorous imprisonment. His appeal to the :District Judge was dismissed on 25th July, 1953, and a revision petition to the High Court of Judicature at Dacca was also dismissed on 24th of November, 1953. He moved this Court for special leave to appeal which was granted.
The appellant was employed as a Tax,. Collector under Jamalpur Municipal Committee. As such, it was his duty to realize taxes from the rate‑payers. It is alleged that between 25th of December, 1949 and 23rd of December, 1950 he collected the total amount of Rs. 808‑13‑3 from eighty‑six persons to whom receipts signed by him were duly given, but the amount was not credited to the Committee. The execution of the receipts is not disputed, nor was the evidence of some of the rate‑payers, viz., P. W. 5, P.. W. 7; P. W. 8, P. W. 9, P. W. 10 and P. W. 12 who were examined and who had stated that they had paid their dues to the appellant himself, was ever challenged. The practice, as explained by Abdul Hamid (P. W. 3), Chairman of the Municipal Committee, was that the tax Collected was to be entered in the daily Collection challans by the Tax Collector in accordance with the counterfoils of the receipts issued by him, and the amount had to be made over to the Tax Darogha who was to enter it in his own cash book, also known as the Demand Register, and paid .into the Treasury. The collection challans for the period 25th of December, 1949 to 31st of 'arch, .1950 and for those of 11th August, 1950 to 23rd December, 1950 have been produced in Court ; those for April to August 1950 could not be traced. The amounts realized during the period for which the challans were available, are evidenced by the receipts passed by the appellant, but do not find‑ place in the daily challans prepared by him...Under these circumstances it was for the appellant to explain what did he do with his collections. He was put the question ; "You have heard the examination and the cross‑examination of the witnesses, what is your defence " His reply was "I am innocent"
It was contended that such a vague question as was put to the appellant did not fulfil the requirements of section 342, Cr. P. C., and the special leave to appeal was granted to examine that position. Since this is not the first case of its kind, which has come up to this Court, where the examination of the accused was sought to be made by a vague and a general question, it is desirable for the guidance of the Courts to point out what is really necessary to be done where the accused is examined under section 342. Section 342 says:
"(1) 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 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.
(2) The accused shall not render himself liable to punish ment by refusing to answer such questions, or by giving false answers to them ; but the Court and the jury (if any) may draw such inference from such refusal or answers as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
(4) No oath shall be administered to the accused."
The opening words of the section are very important. It is "for the purpose of enabling the accused to explain the circumstances appearing in evidence against him" that his examination is needed. Where "the circumstances appearing in evidence against him" are not put the accused and his explanation is not taken thereupon, it cannot be said that the purpose of section 342 has been fulfilled. It is not a mere formality, but is an essential part of the trial that the accused should be given notice of the point or points which he must meet in order to exonerate himself. In Tani's case, 20 Cr. L J 12 (Nag.) it was held "in order that the accused may explain all the fact appearing in the evidence against him, it is necessary that his attention . should be directed to all the vital parts of the evidence against him, specially if he is an ignorant person who cannot be expected to know or understand what particular parts of the evidence are or are likely to be considered .by the Court to be against him." In Alimuddin's case 52 Cal. 522, it was laid down "The Court should not only point out to the accused the circumstances appearing in the evidence which require explanation but it must out of fairness to the accused exercise that power in such a way that the accused may know what points in the opinion of the Court require explanation and failure or refusal on the part of the accused to give the explanation will entitle the Court to draw an inference against him." In the Calcutta c se cited above, it was also pointed out that "The word 'generally' does not limit the nature of the questioning to one or mere questions of a general nature relating to the case, but it means that the questions should relate to the whole case generally, and should not be limited to any particular part or parts of it. The word 'generally' does not mean that the accused cannot be subjected to a detailed examination by the Court. The law intends that the salient points appearing in the evidence against the accused must be pointed out to him in a succinct form and that he should be asked to explain them if he wished to do so."
It should not, however, be overlooked that the real object of section 342 is not to subject the accused to a detailed cross‑examination. It is, as a matter of fact, inviting his attention to the point or points in the evidence which are likely to influence the mind of the Judge in arriving at conclusions adverse to the accused, and before such an adverse inference can be drawn, the accused should be afforded an opportunity to offer an explanation, if he has any.
The above interpretation of section 342 of the Cr. P. C. would make it clear that the question of the nature "You have heard the evidence, what is your defence " Would hardly meet the requirements of the section. In the present case, it would have been proper and desirable to have put to the accused. "The evidence discloses that you collected some taxes from such and such a person, what do you say to this " Another question could be "The evidence discloses that the amounts collected by you should have been according to the practice and the orders of the Municipality, entered into daily collec tion challans, where they are not entered, what do you say to this " etc. etc.
The accused is literate and could very well follow the nature of the proceedings against him, and .was also aware of the prosecution case. Since no miscarriage or failure of justice has been proved in this case, section 537 of the Cr. P. C. would cover it, and for that reason, no interference is called for by this Court. The learned counsel for the appellant was asked if there was anything to show that the amount had been credited to the Municipal Committee or paid to the Tax Darogha, he could not refer to any material on the record to show this, nor could he urge that the accused, had, in any way, been prejudiced by the general question put to him. In its absence, the appeal is hereby dismissed, and the appellant must surrender to his bail bond to serve out the unexpired portion of his sentence.
K. M. A. Appeal dismissed.
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