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Criminal Revision Petition No. 163 of 1959, decided on 4th December, 1959.

Ss. 256 & 254- Magistrate has no discretion not to examine any of the witnesses which prosecution has to produce‑Failure to examine all prosecu tion witnesses‑Vitiates whole trial.

The words "shall" and "all" occurring in section 256 of the Criminal Procedure Code, 1898 indicate that a Magistrate has no discretion whatsoever not to examine any of the witnesses which the prosecution has to produce. The Magistrate has, of course, a discretion before recording the entire evidence to frame a charge against the accused, under section 254 of the Code, but if he proceeds under section 254 of the Code before recording all the prosecution evidence, then he must follow the procedure laid down in section 256, Criminal Procedure Code, 1898. If a Magistrate has framed a charge against an accused on hearing a complainant's evidence, he is not entitled to pass any final orders on that charge without taking further evidence. The prosecution has no doubt the discretion to give up the witnesses whom they do not want to examine but then this discretion is vested in the prosecution and not in the Court. The failure of the Magistrate to examine all the prosecution witnesses is an illegality which is not curable and which vitiates the trial in its entirety.

Heman Ram v. Emperor 47 Cr. L J 143 and F. D. Bellow v. Mrs. Parker 7 C W N 521 ref.

S. 342‑Provisions mandatory‑Omission to examine accused vitiates trial even though accused be eventually acquitted.

The wording of section 342 of the Criminal Procedure Code, 1898 makes it perfectly clear that after all the prosecution evidence is examined, it is necessary for the Court to examine the accused and thus give him an opportunity to explain away the circumstances appearing against him in the evidence. The examination of the accused under section 342 will be essential even if the Magistrate eventually decides to acquit the accused. Failure to comply with the mandatory provisions of section 342, Criminal Procedure Code 1898 is an illegality which vitiates the whole trial.

Emperor v. Kissan Yassu and Chindia Ramji 4 N L R 163 ; Behari v. Emperor 27 Cr. L J 1364 and Remembrancer of Legal Affairs, Bengal v. Satish Chandra Roy and others A I R 1924 Cal. 975 ref.

N. A. Siddiqi for Petitioner.

Mazharul Haq for Respondents.

Asad Ali Rizvi for A. G. for State.

Dates of hearing : 27th November 1959 and 4th December 1959.

On a report made by one Muhammad Ashraf son of Mehraj Din, in Ichhra Police Station, on the 11th of July 1957, a case was registered under section 307, P. P. C. After investigation was completed, the officer‑in‑charge of Ichhra Police Station forwarded to a section 30 Magistrate, Lahore, a police report in the prescribe form setting forth the names of four persons, namely, Barkat Ali, Muhammad Ali and Muhammad Ashiq sons of Ahmad Din and Muhammad Siddiq son of Muhammad Ali, as accused persons and the nature of offence committed by them as attempted murder. The names of seventeen persons were given in the list attached to this report as the persons who appeared to be acquainted with the circumstances of the case. The learned Magistrate taking cogniz ance of the case proceeded to try the case as he was required to do by law under Chapter XXI of the Code of Criminal Procedure. He recorded the statements of four witnesses on the 14th of September 1957, three witnesses on the 11th of October 1957, one witness on the 7th of December 1957, one witness on the 8th of January 1958 and one witness on the 19th of February 1958. Thereafter he made up his mind to frame a charge against all the four accused persons. The short order which he wrote giving expression to his opinion was separately written but not dated. The charge sheet, however, shows that it was actually framed on the 4th of March 1958. It was explained on the same day to all the accused persons and the case was then adjourned to the following day on which date all the accused wanted to summon all the prosecution witnesses who had been examined for re‑cross examination except witnesses Nos. 9 and 10. Thereafter the Magistrate who had recorded the prosecution evidence and had framed the charge was transferred. On the 27th of May 1958, the accused made a statement before the new Magistrate that they did not want a de novo trial. Barkat Ali accused, however, stated that he wanted to summon Siraj Din, Abdul Aziz, Muhammad Sharif, Muhammad Aslam, Mehraj Din, Muhammad Ashraf and the second Siraj Din for cross‑examination. On the 21st of June 1958, the learned Magistrate ordered that the whole case should be tried afresh. Thereafter the learned Magistrate examined Muhammad Ashraf on the, 21st of June 1958, Muhammad Aslam on the 21st of July 1958. Abdul Azlz and Siraj Din on the 22nd of July 1958, and Siraj Din son of Mian Muhammad and Mehraj Din on the 23rd of July 1958. Without recording the evidence of the remaining prosecution witnesses or the accused he proceeded to announce the orders which he did by acquitting the accused on the 18th of October 1958. Muhammad Ashraf son of Mehraj Din has come up on revision against this order and he submits that the entire trial is vitiated by several illegalities which have been committed by the learned trial Court.

2. According to the procedure for the trial of warrant cases laid down in Chapter XXI of the Code of Criminal Procedure, when the accused appears or is brought before a Magistrate then the Magistrate shall proceed to hear the complainant, if any, and take all such evidence as may be produced in support of the prosecution. I wish to lay emphasis on words "shall" and "all" occurring in this section in order to show that it is mandatory for the Magistrate to record the entire evidence which the prosecution A has to produce in the case. The Magistrate, however, has a discretion before recording the entire evidence to frame a charge against the accused, under section 254, Cr. P. C. which is to the following effect:‑--

"If, when such evidence and examination have been taken and made, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused."

If the Magistrate proceeds under section 254, before recording all the prosecution evidence, then he must follow the procedure laid down in section 256, Cr. P. C., that is to say, after enquiring from the accused whether he wishes to cross‑examine any, and, if so, which of the witnesses of the prosecution, and if he wishes to examine any of the prosecution evidence, after recalling such witnesses and allowing the accused to cross‑examine him, he shall proceed to examine the remaining prosecution witnesses. The use of the words "shall" in this section again indicates that a Magistrate has no discretion whatsoever not to examine any of the witnesses which the prosecution has to produce. If a Magistrate refuses to follow the mandatory provisions laid down in the sections quoted above, then, in my opinion, the entire trial is vitiated. This is the opinion which has been taken in a Full Bench authority of the Lahore High Court reported in Heman Ram v. Emperor (47 Cr. L J 143). In this case the entire procedure for the trial of the warrant cases was reviewed by the learned Judges and it was held that it was absolutely essential for the Magistrate to comply with the provi sions of sections 252 and 256, of the Code of Criminal Procedure and if a Magistrate did not observe the procedure laid down therein, then he committed 'an illegality which vitiated the whole trial. The same view was taken in an earlier case, F. D. Bellow v. Mrs. Parker reported in (7 C W N 521). It was held in this case that if a Magistrate has framed a charge against an accused on hearing complainant's evidence, he is not entitled to pass any final orders on that charge without taking further evidence.

3. In the instance case, as I have already mentioned, the officer in charge of Ichhra Police Station had specifically stated that seventeen persons were to be produced by the prosecution in order to prove the prosecution case. It is true that the prosecu tion has the discretion to give up the witnesses whom they do not want to examine but then this discretion is vested in the prosecu tion and not in the Court. The learned Magistrate, after examin ing six witnesses, has not said a word as to why he was not examining the remaining witnesses and was proceeding to announce the final orders by acquitting the accused of the offence with which they were charged. The failure of the learned Magistrate, there fore, to examine all the prosecution witnesses is an illegality which is not curable and vitiates the trial in its entirety.

4. The second serious objection taken against the procedure adopted by the learned Magistrate is that after recording the prosecution witnesses neither the first Magistrate nor the second recorded the statements of the accused as it was incumbent upon them to do under section 342, Cr.P.C. This section lays down that 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. The wording of section 342, Cr. P. C., in my opinion, makes it perfectly clear that after all the prosecution evidence is examined, it is necessary for the Court to examine the accused and thus give him an opportunity to explain away the circumstances appearing against him in the evidence. The examination of the accused under section 342 will be essential even if the learned Magistrate eventually decides to acquit the accused. In fact, the order of acquittal cannot be recorded by the Magistrate at all until he has examined all the prosecution witnesses and has called upon the accused to enter upon his defence. He cannot call upon the accused to enter upon his defence unless he has first examined him. This makes it abundantly clear that before an order for acquittal is actually passed, the statement of the accused must be recorded. The view which I am taking is supported by Emperor v. Kissan Yassu and Chindia Ramji (4 N L R 163). Very appropriately, the learned Judges in this case observed as under :‑

"I cannot concur in the view that section 342 is intended merely for the benefit of the accused. It is part of a system for leading the Court to discover the truth, and it constantly happens that accused's explanation, or his failure to explain, is the most incriminating circumstance against him. The result of the examination may be beneficial, but it may equally be most injurious, to him. The principle involved is that contained in the elementary judicial maxim, audi alteram partem, and the section floes not. require that the accused should be heard only on what is prima facie proved against him, but on every circumstance appearing in evidence against him.

With all respect, I agree with every word that has been said above. Again, in a Rangoon case Behari v. Emperor (27 Cr. L J 1364) it was held by a Division Bench that omission to examine the accused as required by the imperative provisions of section 342 vitiates a trial even though it has resulted in an acquittal. The same view was taken by the Calcutta High Court in Remembrancer of Legal Affairs, Bengal v. Satish Chandra Roy and others (A I R 1924 Cal. 975) in which the order of acquittal was set aside on the ground that the trial had been vitiated by a failure to comply with the mandatory provisions of section 342. This judgment goes a step further and in spite of holding that perhaps no useful purpose will be served if the retrial is held, the learned Judges ordered the retrial because the trial which had already taken place was bad in law on account of the omission of the Magistrate to record the statement of the accused under section 342. No authority holding a contrary view has been produced before me. I have, therefore, after very care-full consideration of the case, arrived at the conclusion that the trial in question is absolutely bad in law and is vitiated by illegalities committed by the learned trial Court detailed above. The trial is set aside and the case is remanded for trial de novo in accord ance with law. The accused to appear before the Additional District Magistrate, Lahore, on the 14th of December, 1959. It will be for the Magistrate to decide whether the accused should remain on bail or not.

K. B. A. Retrial ordered.

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