JIVANJI MALAJI Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
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(1.) THE other point raised by Mr. Barot relates to the learned Magistrate having not followed the provisions contained in sec. 342 of the Criminal Procedure Code inasmuch as he did not put questions with regard to the evidence and the circumstances disclosed therein so as to enable the accused to explain the same. If one turns to the further statements of the accused each of them has been asked no doubt a general question about his having heard the prosecution evidence led in the case and whether he had to say anything in the matter. All of them have replied by saying that he produces his written statement. It appears that the written statement was produced by accused by No. 1 and it is at Ex. 4. THE rest of the accused have stated in reply to the question put by the Court that he admits the contents of the written statement filed by accused No. 1 and that he has put his thumb impression thereon. Now it is not that there is any bar to the accused putting any written statement in response to the general question put by the Court at the stage when he is examined under sec. 347 of the Criminal Procedure Code. Such a written statement is often produced by the accused and the Courts of the Magistrates have been accepting the same. That in a way appears to have been prepared under the guidance of the advocates appearing for the accused presumably for the reason that the accused may not be asked any questions by the Court the reply to which may turn out sometimes not helpful to him in the case. It is no doubt the duty of the Court to put all questions in respect of the evidence and circumstances disclosed in the case so as to enable the accused to explain the same. But if the Court feels satisfied after satisfying itself that the written statement filed by him is voluntarily made and the contents whereof are admitted by him to be true it may not be so very necessary then to put all such questions particularly when the explanations to the same are given in his written statement. I am shown no authority which suggests that inspite of all that not having put questions under sec. 342 of the Criminal Procedure Code to the accused by the Court the trial would be vitiated on that account. Now if we look to the written statement Ex. 42 it is a very elaborate statement containing four pages and dealing with every little aspect of the case. If in such circumstances the Court felt satisfied that accused has explained the evidence and circumstances disclosed in the case against him it may not be so very necessary to put questions thereafter so as to have practically the same answers which have been set out in their written statement. What is required under sec. 342 of the Criminal Procedure Code is fulfilled. I do not see how the provisions contained in sec. 342 would then be said to have been violated. It would be too much for such an accused or his learned advocate now to raise such a question when that method was obviously helpful and for his benefit and more so when no prejudice to him is thereby caused.
(2.) IN this connection I was referred to a case of Jai Dev v. State of Punjab A. I. R. 1963 Supreme Court 612 where the Supreme Court has explained the effect of the earlier case of Ajmer Singh v. The State of Punjab A. I. R. 1953 Supreme Court 76. The Supreme Court has held that:-
The examination of the accused person under sec. 342 is intended to give him an opportunity to explain any circumstances appearing in the evidence against him. IN exercising its powers under sec. 342 the Court must take care to put all relevant circumstances appearing in the evidence to the accused person. It would not be enough to put a few general and broad questions to the accused for by adopting such a course the accused may not get opportunity of explaining all the relevant circumstances. On the other hand it would not be fair or right that the Court should put to the accused person detailed questions which may amount to his cross-examination. The ultimate test in determining whether or not the accused has been fairly examined under sec. 342 would be to enquire whether having regard to all the questions put to him he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him that would no doubt be a serious infirmity. It is obvious that no general rule can be laid down in regard to the manner in which the accused person should be examined under sec. 342. Broadly speaking however the true position appears to be that passing for brevity which may be content with asking a few omnibus general questions is as much inconsistent with the requirements of sec. 342 as anxiety for thoroughness which may dictate an unduly detailed and large number of questions which may amount to the cross-examination of the accused person.
The Supreme Court has in the earlier case of Ajmer Singh v. The State of Punjab A. I. R. 1953 Supreme Court 76 observed that every error or omission not in compliance with the provisions of sec. 342 does not necessarily vitiate a trial. Errors of this type fall within the category of curable irregularities and the question whether the trial is vitiated depends upon the degree of the error and upon whether prejudice has been or is likely to have been caused to the accused. With these observations and having regard to sec. 537 clause (a) of the Criminal Procedure Code I do not find any illegality in accepting the written statement filed by the accused or even an irregularity which would justify one to say that any prejudice had come to be caused to the accused-applicants which could not be cured having regard to sec. 537 clause (a) of the Criminal Procedure Code. Neither of these two cases deals with a case in which any written statement has been filed by the accused in the trial before the Court and I am not shown any other provision of law or even any authority which debars the Court from accepting any written statement from the accused in the Court of the Magistrate at the time when his further examination is taken under sec. 342 of the Criminal Procedure Code. It is indeed true and I do not subscribe to the view that the Magistrate should in all cases try to obtain a written statement so as to save his labour for it appears essential so as to comply with the provisions of sec. 342 of the Criminal Procedure Code that he should not fail in his duty to get satisfaction by putting questions arising out of the evidence as also the circumstances in the case to the accused so as to enable him to explain the circumstances and more particularly when some of them have not been explained or replied to in the written statement filed by him. If any material questions arising out of the evidence have not been put to and if as a result thereof the accused have had to suffer then certainly having regard to the principles laid down in the cases set out here above the irregularity may not be curable under sec. 537(a) of the Criminal Procedure Code and the trial may have to be vitiated. Nothing of the kind however arises in the present case for I feel quite satisfied that the written statement covers all the points and as I said above it tries to meet any and every possible argument arising out of the prosecution case against them. Application rejected.;
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