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Criminal Miscellaneous No. 43 of 1980, decided on 26th March, 1980.

---S&. 242, 243, 244 & 245 read with S.. 435-Revision (criminal) Court while examining accused under S. 242, Cr. P. G, omitting to take down answer of accused tit show whether it was in alternative or negative and proceeding to record prosecution evidence--He/d : Court committed no material irregularity so as to render proceedings illegal or vitiative - Omission constituting irregularity, held further, may be corrected by trial Court and Court ordered to act accordingly.

Date of institution : 28th March, 1980.

This is a reference made by the Additional Sub-Judge, Magistrate Ist Class, Muzaffarabad by which it was brought to the notice of this Court that while examining the accused under section 242, Cr. P. C: his pre decessor failed to write answer of the accused as to whether they pleaded guilty or not and it was thus without reducing the answer of the accused into writing that the learned trial Magistrate proceeded with the evidence of the prosecution and statements of two of the prosecution witnesses were also recorded so far when omission of the answer of the accused from their statements under section 242, Cr. P. C. was discovered by him. This situation according to the referring Magistrate, renders the proceedings taken so far by his predecessor as illegal. The learned Magistrate, who has referred the matter to this Court, should go through section 242 alongwith sections 243, 244 and 245, Cr. P. C. so as to see whether omission of the answer of the accused in any way renders the proceedings taken so far by his predecessor as illegal or not, When an accused is examined under section 242, Cr. P. C. and he admits that he has committed the offence of which he is accused, his admission shall accordingly be recorded and if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him and if he does not make such an admission or if the Magistrate does not convict the accused under section 243, Cr. P. C. the Magistrate shall proceed to hear the prosecution witnesses in support of the case put up by the prosecution and also to hear and examine the accused and take all such evidence as he produces in his defence. After the close of the evidence of the parties, the trial Court is to hear the arguments and then give its verdict according to law. In this case, the learned. Magistrate who examined the accused under section 242, Cr. P. C. and omitted t take down the answer of the accused to show whether it was in affirmative or negative, proceeded to record the evidence of the prosecution which he did accordingly. It means that the accused had not pleaded guilt and so he proceeded with the case under section 244, Cr. P. C. Under these circumstances, the omission of the answer of the accused froth the statements recorded under section 242, Cr. P: C. by the trial Court will no render the proceedings illegal as referred to by the referring Magistrate. The omission pointed out by the learned Magistrate is not such so as to render the proceedings taken so far by the Magistrate as illegal. This, is not a material irregularity so as to vitiate the proceedings taken so far by flee trial Court. The omission constituting irregularity indicated above may no' be corrected by the trial Court. Therefore the learned Magistrate is directed to proceed on with the case accordingly and after the close of evidence of the prosecution, the accused should be examined under section 342, Cr. P. C. and then take evidence in defence of the accused, if any, and thereafter hearing the arguments, the case may be disposed of accordingly. The reference thus stands answered here before.

Order accordingly

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