In Re: Vithaldas Bhurabhai

Fawcett, J.—The only legal point taken in this application is that the Magistrate ought to have examined the petitioner u/s 342 of the Criminal Procedure Code and that his omission to do so has vitiated his proceedings.

Mr. Shah for the petitioner has contended that the word "accused." in Section 342 is not confined to the case of a person accused of an offence and has referred us to various sections of the Criminal Procedure Code, where such a construction might give rise to inconvenience. Even assuming that the word "accused" is sometimes used in the Code in a wider sense than a person accused of an offence, still it seems to me perfectly clear that Section 312 does not apply to a case u/s 488 of the Code. The latter part of Sub-section (1) of Section 342 speaks of the accused being questioned generally in the case "after the witnesses for the prosecution have been examined and before he is called on for his defence." Those words are appropriate to the case of an enquiry or a trial in regard to an offence alleged to have been committed by the accused. They are entirely inappropriate to the case of proceedings u/s 488, which are more of a civil than a criminal nature, as has been pointed out in Rozario v. Ingles 18 B. 468 at p. 473 : 9 Ind. Dec. (N.S.) 822 and In re Ponnammal. The obvious reason, for the provisions of Section 342 is the fact that a person accused of an offence cannot give evidence on oath in support of his own case, whereas a person against whom proceedings are instituted u/s 488 is permitted to give evidence on oath on his own behalf, and has a full opportunity of being heard as if he were a party in a civil suit. Therefore, I am clearly of opinion that Section 342 does not apply to proceedings u/s 488. There is a ruling of the Calcutta High Court in Bachai Kalwar Vs. Jamuna Kalwarin, to the same effect. As there pointed out, Section 488 has been amended in 1923, so as to strike out the reference that formerly existed to "the accused"; and this supports the view that I have taken. Therefore, in my opinion, there is no adequate ground for our interfering in revision and I would dismiss the application.

Mirza, J.

I agree.