- (1.) RAM Das and two others have filed an application under Section 215, Criminal P. C. , read with Section 561a, Criminal P. C. , praying that the order of committal passed by the Special magistrates, Sitapur, dated 20-5-1954 be set aside and the proceedings be quashed. The applicants were committed under Section 307 read with Section 34. Penal Code to stand their trial in the Court of the Sessions Judge, Sitapur.
(2.) SEVERAL grounds were taken in this application, but the main contention of the counsel for the applicants is that the committing Magistrates did not examine the accused persons under Section 342, Criminal P. C. , and this, has vitiated the entire proceedings.
(3.) ON behalf of the opposite parties it was contested that no illegality has been committed, if section 342, Criminal P. C. , is correctly interpreted. It was argued that Section 342, Criminal P. C. , contemplates two stages when a Court can examine the accused persons. The first stage extends upto the time when the accused is called upon his defence and it is discretionary with the magistrate to examine him during this stage or not. The second stage, which is the mandatory part of this Section, is reached when the accused is called upon to enter upon his defence. As in an inquiry under Chapter 18, Criminal P. C. , the accused is not called upon to enter into his defence, it cannot be said that the Magistrate, if he omitted to examine the accused persons, committed any illegality. It is contested that the accused is called upon to enter into, his defence only when after committal the proceedings start in the Court of Session and he is asked to register his plea. In support of this contention art authority was cited. This decision is reported in -- 'emperor v. Ajahar Mandal, AIR 1935 Cal p. 605 (A ). It was held in this case that in a case which is triable by a Sessions Court, it is the latter Court which tries the accused and calls upon him to enter on his defence and, therefore, it is to that Court that the mandatory provisions of Section 342, Criminal P. C. , are applicable. That being so it cannot be said that the omission to examine the accused in the committing Court is a disregard of an express provision of law and, therefore, illegal.;