P L D 1967 Dacca 503 (PLP)

A written statement cannot anticipate the requirement of the Court and, therefore, cannot be deemed to be a substitute for examination under section 342 of the Code of Criminal Proce dure. Moreover, the purpose of the examination is that the Court should give an opportunity to the accused to give such explanation as he may consider necessary in regard to the salient points made against him. It also gives an opportunity to the Court to hear directly from the accused what he has got to say in regard to the accusation made against him, bearing, however, in mind that the accused must not be cross‑examined in any manner. A written statement is in the nature of an argu ment prepared by the accused with or without the assistance of the counsel and cannot take the place of a free and frank statement from the accused as contemplated under section

342. The words "at any stage of any enquiry or trial without pre viously warning the accused" occurring in section 342 clearly indicate that the Court must itself put certain questions and elicit answers thereon, without giving a warning as to those questions. Therefore, a written statement is not contemplated under section 342, nor can it be an adequate substitute for such examination, Khan Bahadur Naziruddin Ahmed has drawn my attention to the following passage occurring in the case of Emperor v. Alimuddin Naskar (I L R 52 Cal. 522), which he rightly calls a gem in forensic literature:‑ "The section as it stands is undoubtedly for the benefit of the accused; the provisions embodied in it enable him to explain the circumstances appearing against him in the evidence. I cannot, however, concur in the view that it is intended merely for his benefit. It is a part of a system for enabling the Court to discover the truth, and it constantly happens that the accused's explanation, or his failure to explain, is the most incriminating circumstance against him. The result of the examination may certainly benefit the accused if a satisfactory explanation is offered by him; it may, however, be injurious to him if no explanation or a false or unsatisfactory explanation is given. These conclusions to my mind follow from the words "without previously warning the accused" which appear in the first part of subsection (1) and the provision at to the drawing of inference contained in sub section (2). If that be the intention of the Legislature, as I have no doubt it is upon the words of this section, it inevitably follows that the Court should not only have the power to point out to the accused the circumstances appearing in the evidence which require explanation; but that it must, out of fairness to the accused, exercise that power in such a way that the accused may know what points in the opinion of the Court require explanation, failure or refusal to give which will entitle the Court to draw an inference against him." I must say that the fact that this revisional application is directed against an order of acquittal caused considerable anxiety to me in coming to a decision whether a grievance can be made, for non‑compliance with that section, by the complainant. The section is primarily designed for giving an opportunity to the accused for explaining the salient features of a case against him and therefore, when there is an acquittal, there is no prejudice to the accused and in that view of the matter an interference on that account probably is not in conformity with the spirit of the legislation, but the passage quoted above, clearly indicates that the examination as contemplated in the Code, `is a part of a system for enabling the Court to discover the truth' and not merely for the benefit of the accused and that being the position, for non‑compliance or failure to observe that essential part of the scheme a grievance can be made by any of the parties interested in the result of the proceedings. Therefore, it seems to I me to be open to the complainant also to make a grievance for non‑compliance with section 342 of the Code. The learned Judge in the passage just quoted above has clearly said that the result of the examination may be beneficial to the accused if a satisfactory explanation can be given. On the contrary, it may also be prejudicial to him and therefore it is an essential part of a trial which cannot be omitted. It is true that there are views to the effect that improper compliance with the requirement of section 342 of the Code is a mere irregularity and that being so, whether the accused has in fact been prejudiced should be the main consideration. That may be a general proposition in a case where the trial has ended in conviction. But looked at the trial as a whole, it seems to me, that it is an integral part of a scheme complete elimination of which may cause prejudice to either of the parties, In the celebrated case of Amrita Lal Hazra and others v. Emperor (I L R 42 Cal. 957), the question of substitution of a written statement for examination of an accused also received consideration in the following passage: "A question has been raised in this Court as to the propriety of the procedure adopted by the Sessions Judge when he accepted written statement from the accused, and our attention has been drawn to Emperor v. Ansuiya (1903) All. W N

1. It is sufficient to state that no objection was taken by the Crown in the Court below when the statements were tendered and received. The procedure followed in this case is in accordance with what we believe is the universal practice in the Courts of this Province, and we do not feel pressed by the doubt suggested in the case mentioned. But it is desirable to state explicitly that such a written statement does not take the place of evidence nor of such examination of the accused as is contemplated by the Code." In the instant case the learned Magistrate has thought that an examination of the accused is not necessary when a written statement is obtained from him and he has made use of the statement as if it was evidence in the case. This point also came to be considered by Mr. Justice Rankin (as he then was), in the case of Pramatha Nath Mukherjee v. Emperor (I L R 50 Cal. 518), and the learned Judge observed as follows:‑ "Now, the first question to which I have to address myself is the question whether there has been a compliance with the section. In this country it often happens that a prisoner is tried in a language which for one reason or another he under stands but indifferently well, and for that reason as well as for other equally grave reasons the intention of the statute is that at a certain stage in the case the Court itself shall put aside all counsel, all pleaders, all witnesses, all representatives, and shall call upon each individual accused with the authority of the Courts own voice to take advantage of the opportunity which then arises to state in his own way anything which he may be desirous of stating." The learned Judge has further observed:‑ "What is necessary is that the accused shall be brought face to face solemnly with an opportunity given to him to make a statement from his place in the dock in order that the Court may have the advantage of hearing his defence, if he is willing to make one with his own lips." It is, therefore, clear that what is contemplated in the section is that without the assistance of counsel or the pleader, the accused must be brought face to face with the Court and the Court must have an opportunity of hearing his statement from him if he has one and not a prepared one. A prepared state ment hardly expresses his own views about the accusation made against him. I am, therefore, clearly of opinion that acceptance of a written statement is not compliance with the requirement of law as provided in section 342 of the Code. My learned brother Murshed, J., was also dealing with an order of acquittal when this matter previously came to this Court and he also felt that a grievance could be made for an improper examination of the accused even in a case where the trial has ended in the acquittal of the accused. On that occasion his Lordship also found that there was no proper appli cation of mind on the evidence. He observed as follows: ". . . It is, however, evident that the learned Magis trate had not applied his mind to the evidence in this case. Besides he has not properly examined the accused persons under the provision of section 342 of the Code of Criminal Procedure. For the aforesaid reasons I make the rule absolute and set aside the order of acquittal passed by the learned Magis trate on the 11th November 1958. It is directed that this case be sent back on remand to the trial Court for the disposal in accordance with law upon fresh examination of the accused persons under section 342 of the said Code. The learned Magistrate may proceed to dispose of this case on the evidence that has already been recorded." In view of this clear command, the learned Magistrate had no scope to accept a written statement in lieu of examination of the accused. Acceptance of a written statement is not an examination of the accused. At `best it may be claimed only as a substitute for an examination but in this particular case apart from the requirement of law already discussed above, when there was a clear direction of a superior Court it should have been strictly obeyed and I must observe that a serious view for non‑compliance with any such direction in future will be taken by this Court. In these circumstances, this case must go back and my order is precisely the same as it was when the case was sent back on the previous occasion. The learned Magistrate must, therefore, properly examine the accused in this case in true compliance with the requirement of section 342 of the Code of Criminal Procedure. He must without cross‑examining or trying to incriminate the accused persons put in separate sentences and in simple language the salient features of the prosecution case against the accused persons and draw their attention to the material points that are being made against them in order to enable them to give such explanation, if any, as they may consider necessary and he should also apply his mind properly to the evident adduced in the case and after having properly applied his mind he is free to come to such conclusion as appears to him to be reasonable. So far as the evidence is concerned, I must not be understood to be indicating my views one way or the other. But what is insisted upon is that there must be true compliance with the provision of law as laid down under section 342 of the Criminal Procedure Code. In the result, the Reference made by the learned Additional Sessions Judge is accepted and the order of acquittal passed by the learned Magistrate on 7‑3‑61, is set aside and it is directed that the case be sent back on remand to the trial Court for its expeditious disposal in accordance with law upon fresh examina tion of the accused persons under section 342 of the Code and the learned Magistrate may proceed to dispose of the case on the evidence already recorded by him. Before I part with this judgment, I must observe that it is indeed unfortunate that owing to the failure of the trying Magis trate to comply with the requirement of law and follow the direction of this Court relating to section 342 of the Code, the accused persons have to go through the perils of a trial once again. K. B. A. Reference accepted.