P L D 1961 Dacca 96 (PLP)

The charge was reed over and explained to the accused persons who pleaded not guilty." The examination under section 342 reads as follows : "The charge against you that on the 22nd Jaistha, 1366 B. S., you unlawfully assembled with others for the purpose of assaulting Abdul Awal and his witnesses and you yourself with other accused assaulted the complainant with lathis and that by reason of the lathi blows Abdul Majid, witness No. 2 got his middle finger injured and broken. You have heard the evidence on those points. What have you to say ? Ans. I am innocent."

6. The above discloses that the accused was not asked as to whether he would like to bring forward his witnesses or had any defence to make.

7. Mr. Sayem has cited in support the decision in Moksed Ali Molla and others v. The State (P L D 1960 Dacca 13) in which it was held that "a general question to the accused in their examination under section

342. Cr. P. Code, as to what their reply was having heard the prosecution evidence, and if they had anything further to say without a specific enquiry as to whether they would adduce any defence evidence is not a due compliance with the provision of section 342 of the Code, inasmuch as such an omission on the part of the Court may very well mislead the accused persons into the belief that that the stage for calling of the defence evidence would arrive after they had been asked by the Court if they wished to adduce any such defence. Failure of the Court to ascertain from the accused whether they have any defence to make renders the conviction illegal".

8. In the case cited also as in the present case, it appears that even at the stage of charge the accused was not asked if he had any defence to male, far from there being any direct question on that point in the examination under section 342 of the Criminal Procedure Code.

9. Mr. Amin Azhar, the learned Advocate for the com plainant opposite‑party has referred to the order‑sheet of the learned Magistrate showing as follows "5‑8‑59 Accused appeared. Cross‑examined P. W.1 and examined accused under section 342, Cr. P. C. They plead not guilty. To 18‑8‑59 for defence argument. Accused as before. 18‑8‑

59. Accused appeared. Defence lawyer prays for time. Allowed to 24‑8‑

59. Accused as before".

10. On the basis of the above, Mr. Amin Azhar argues that no prejudice could have been caused to the accused and that he was quite conscious of his right to adduce evidence.

11. Mr. Sayem has contended that the order‑sheet does not disclose that there was any adjournment for defence witness but it was only for argument and that the very petition for adjournment shows that time was prayed for argument as the lawyer was busy.

12. Mr. Sayem contends that the object of the examina tion under section 342, Cr. P. C. is to establish a sort of personal relationship between the Judge and the accused whether the accused would like to examine any defence evidence, should be not in the mind of the Judge only but should be expressed directly to the accused by the learned Judge to elicit directly the view point of the accused with regard to his right and desire for bringing D. Ws.

13. The order‑sheet does not clearly indicate that the accused knew that he was being given the time and opportunities to bring defence witness or that he was entitled to do so. The adjournment was for argument only. The right conferred by section 342, Cr. P. C. is a basic right of the accused. Courts should be vigilant, against detracting from the elements of the right as conferred by the section on the accused.

14. The mere fact of adjournment granted at the instance of the accused cannot indicate that the accused from before knew that he could bring his witnesses at that stage if he so liked.

15. In the result the Rule is made absolute and the con viction and sentence are set aside and the case is remanded back to the trial Court for retrial from the stage at which the exami nation under section 342, Cr. P. C. was taken and for disposal in the light of the observations made above. The petitioners will continue on the same bail. K. B. A. Rule made absolute.