1969 P Cr (PLP)

Dates of hearing : 12th and 13th June 1969. This Rule is directed against an order of conviction made by Mr. M. A. Hossain, Magistrate, 1st Class, Jessore sentencing the eighteen accused petitioners under section 379, P. P. C. to pay a fine of Rs. 30 each, in default to suffer rigorous imprisonment for 20 days each. The allegations against the accused‑petitioners were that on 17‑12‑1966 (corresponding to 1st Poush, 13 73 B. S) they forcibly and dishonestly cut and took away paddy grown by the com plainant, P. W. 1 in his 1.82 acres of land in plot No. 1236 of Mouza Naldanga P. S. Bagarpara and thereby caused a loss of Rs. 1,000 to P. W.

1. The plea of the accused was one of innocence. Four witnesses for the prosecution and three for the defence were examined in the case. The learned Magistrate on appraisal of the evidence, convicted and sentenced the accused‑petitioners as stated above. The accused preferred a revisional application under section 438, Cr. P. C. before the Sessions Judge, Jessore against the said order of conviction and sentence but the learned Sessions Judge after hearing the parties rejected the motion by an order dated 12‑4‑1968. Hence the present petition before this Court. The learned Advocate appearing for the petitioners has raised only one point before me. He has contended that the examination of the accused persons under section 342, Cr. P. C. is highly improper, that the learned Magistrate has put a wrong date of occurrence and it has created confusion to the accused in making replies and that the learned Magistrate in flagrant violation of the provisions of law, has filled up the examination forms with pencil and carbons. The point raised by the learned Advocate seems to have considerable force. The occurrence took place on the 1st Poush, 1373 B. S. (corresponding to 17‑12‑1966). A perusal of the examination sheets where the statements of the accused were recorded shows that the learned Magistrate put 1st Baisakh, 1373 B. S. instead of 1st Poush, 1373 B. S. therein. It was put to the accused petitioners that they forcibly cut and took away paddy grown by the complainant in his land in plot No. 1236 on 1st Baisakh 1373 B. S. This wrong putting of a date to the accused in their examinations under section 342, Cr. P. C. will naturally create confusion in their minds in making proper replies and they can rightly complain that they were prejudiced thereby. The benefit of this carelessness of the learned Magistrate must go to the accused. The procedure adopted by the learned Magistrate in recording the statements under section 342, Cr. P. C. with pencil and carbons seems to be novel. The examination sheets show that the one statement was written in pencil and others were all its carbon copies. It appears that the learned Magistrate took several sheets of examination forms together putting carbons inside and prepared the statements of several accused persons with a pencil at a time. This means he preferred the statements and recorded the questions and answers with pencil and carbon in advance before actual examination of the accused under sec tion 342, Cr. P. C. Law requires that each and every accused shall be examined separately and not jointly and the statements shall be recorded simultaneously with the examination of each individual accused. It is not clear under what provisions of law the learned Magistrate adopted such a short‑cut procedure. The effect of such short‑cut procedure amounts to a flagrant violation of the provisions of law. Such practice is not only improper but illegal too and it must be disapproved. In consequence, this rule must succeed. The order of con viction and sentence is accordingly set aside and the case is remanded back to the Court of Magistrate with direction to proceed in accordance with law from the stage of examination of the accused under section 342, Cr. P. C. The Rule is thus made absolute. Rule made absolute.