Decided on February 02,1952

STATE Respondents

Referred Judgements :-



- (1.)THIS is a reference by the learned Sessions Judge, Jaipur District, recommending that the conviction and sentence of the accused Chhigan Lal, Bhura, Bhagwana, Sukha, Thakaria, Baliya, Narain, Ram Nath, Jagannath, Goru and Hardeva under sec. 427 of the Indian Penal Code by the Magistrate, First Class, Jaipur District, be set aside. The ground on which the reference has been made is that the Magistrate examined a witness for the prosecution, namely, Lakshmi Narain, after the charge, and thereafter no questions were put to the accused under sec. 342 of the Code of Criminal Procedure before they were called upon to produce their defence.
(2.)THE parties have not appeared. I have perused the judgment of the learned Sessions Judge as well as the explanation submitted by the learned Magistrate. I have also gone through the proceedings of the Magistrate's Court. I find that four witnesses for the prosecution, viz. , Gyarsa, Nand Singh, Ram Chandra, and Ram Pratap, were examined and cross-examined before the charge. THEreafter the accused were examined under sec. 342 (1) of the Code of Criminal Procedure, and charge was framed against them. After the charge, the prosecution witnesses examined before the charge were cross-examined under sec. 256 of the Code of Criminal Procedure. THEreafter the witness Lakshmi Narain was examined and cross-examined. After the statement of Lakshmi Narain had been recorded, the accused were not examined under sec. 342 (1) of the Code of Criminal Procedure, and straight away they were asked to produce their defence, which they did. It was desirable that the Magistrate should have given an opportunity to the accused to explain the circumstances appearing against them in the evidence of this fresh witness, and the procedure adopted by him in calling upon the accused to produce his defence without giving him such an opportunity was not in conformity with law. THE question however, is whether the procedure adopted by the Magistrate occasioned any prejudice to the accused. In a recent case, Bejoy Chand Patra vs. State of West Bengal (1) (A. I. R. (39) 1952 S. C. 105.), it has been held by their Lordships of the Supreme Court that it is not sufficient for the accused merely to show that he has not been fully examined as required by sec. 342, but he must also show that such examination has materially prejudiced him. In the present case, the accused were examined under sec. 342, and they had sufficient opportunity to explain the circumstances appearing in the evidence of the first four prosecution witnesses against them. THEy all stated that the land in dispute was cultivated by the complainant in Samwat 2006, and that the accused damaged the crop raised by him by overturning the land. THE evidence of Lakshmi Narain also shows that the land was in the cultivation of the complainant, who paid the rent to the Thikana, of which he was the Kamdar, from the year 2004 to 2007. Thus there is nothing new in the evidence of Lakshmi Narain, and the learned Magistrate has not put any particular reliance upon the evidence of this witness. It cannot, therefore be said that by the omission to further examine the accused under sec. 342 after the evidence of Lakshmi Narain was over, they were materially prejudiced. THE judgment of the Supreme Court referred to above does not appear to have been cited before the learned Sessions Judge, otherwise he would not have made any reference in the case. THE Magistrate has conceded that the procedure adopted by him in not examining the accused after the statement of Lakshmi Narain had been recorded was not regular but he has said that new matter was introduced by the evidence of Lakshmi Narain, and so there had been no prejudice to the accused. I agree with the trial Magistrate that in the circumstances of the case, no material prejudice has been caused to the accused.
I am, therefore, unable to accept the reference, and it is rejected. The Magistrate should, however, strictly follow the provisions of sec. 342 in future. .

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