JUDGMENT [ENTITY], J.
1. In this case the three accused were tried on a charge under [SECTION], [ACT], and convicted and sentenced each to pay a 6ne of Ra. 25 by the Special Magistrate, First Class, Poona. The learned Sessions Judge of Poona has made a reference to this Court recommending that the conviction and sentence passed by the Magistrate should be quashed as the trial was vitiated by failure to examine the applicants under [SECTION] of the [ACT].
2. It appears that the witness, Exhibit 1, was examined on October 25, and three other witnesses on behalf of the prosecution, Exhibits 2, 3 and 4, were examined on November 1, 1928. On that day the learned Magistrate asked the accused whether they beat the complainant on Sunday September 80, 1928, at 11 A.M. The accused replied in the negative. After the statements of the accused were taken a charge under [SECTION] was framed against the accused and they were asked whether they pleaded guilty to the charge. The accused having replied in the negative, the case was adjourned to November 9, 1928. On November 9, the accused were asked whether they wished to further cross-examine the witnesses and they answered in the affirmative, and the case was adjourned to November 27, 1828. On that day they were asked whether they wished to further cross-examine the witnesses. They replied in the negative and said that they were going to give a list of their witnesses. On December 4, 1928, three of the witnesses on behalf of the defence were examined and two more were examined on December 13, Before the learned Sessions Judge the Public Prosecutor admitted that if was clear from the record that after the charge was framed the Magistrate had not examined the accused under [SECTION] of the [ACT].
3. Under [SECTION] of the [ACT] for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial, without previously warning the accused, put such questions to him as the Court considers necessary. This is a discretionary power which the Court may exercise at any time during the trial or inquiry even before the framing of the charge, but under the latter part of [SECTION] it is obligatory on the Court for the purpose aforesaid to question the accused generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. Under [SECTION] of the [ACT], the charge shall be read and explained to the accused and he shall be asked whether he is guilty or has any defence to make. The question put to the accused on November 1, 1928, was under the first part of [SECTION] before the change was framed. After the charge was framed they were asked whether they pleaded guilty under [SECTION], and having replied in the negative, at the next hearing they were asked under [SECTION] of the [ACT] whether they wished to cross-examine any, and if so, which of the prosecution witnesses. The accused said that they wished to cross-examine the witnesses on behalf of the prosecution and the case was adjourned to November 27. On November 27, they stated that they did not wish to cross-examine the prosecution witnesses. Then the stage was reached under [SECTION] when the accused would be called upon to enter on his defence and produce his evidence, and "before lie is called upon to enter upon his defence" which means the same thing as "before he is called on for his defence," it is obligatory on the Court under the latter part of [SECTION] to question the accused generally on the case after the witnesses for the prosecution have been examined. The stage then for calling upon the accused to explain the circumstances appearing in the evidence against him under the latter part of [SECTION] would be reached where after the charge is framed the accused either declines to cross-examine the prosecution witnesses, or when he expresses a wish to cross-examine and the cross-examination and re-examination is finished, and the evidence of the remaining witnesses for the prosecution has been taken. In the present case there were no further prosecution witnesses to be examined and though the accused on November 9, 1928, stated that they wished to further cross-examine the prosecution witnesses, they declined to do so on November 27, 1928. In my opinion the stage of questioning the accused under [SECTION] generally on the case was not reached till November 27, 1928, when the accused declined to further cross-examine the prosecution witnesses and before they were called on to enter upon their defence. The examination and cross-examination of the prosecution witnesses was no doubt complete on November 1, 1928, and the accused were asked the question whether they assaulted the complainant, and after that examination no further prosecution witnesses were either examined or cross-examined, and it may be said that the accused are not prejudiced by the failure of the Court to question them generally on the case under the latter part of [SECTION].
4. In [PRECEDENT] it was held that under [SECTION] of the [ACT] a Magistrate is bound in a summons case to examine the accused before convicting him. In a summons case under [SECTION] of the [ACT] when an accused appears or is brought before a Magistrate he shall be asked why he should not be convicted. Notwithstanding the examination under [SECTION], it is obligatory to examine the accused again under [SECTION] of the [ACT]. It was held that the omission to comply with the section must necessarily attract the same consequence even in a summons case as in other trials and that the illegality vitiates the proceedings. In Emperor v. [ENTITY] (1924) I.L.R. 50 Bom. 42, S.C. 27 Bom. L.R. 105 it was held that in a warrant case the stage in the trial prescribed by [SECTION] of the [ACT] when the accused has to be questioned generally on the case for the prosecution is after the prosecution evidence is complete, that is to say, after the accused against whom a charge has been framed has cross-examined the witnesses for the prosecution, [ENTITY] held (p. 46):
The Code intends that the accused shall be given an opportunity of explaining any circumstances appearing in the evidence against him. That must mean the whole of the evidence against him, and any examination under [SECTION] before that evidence is closed cannot possibly fulfil the conditions of the section.
5. In that case after the prosecution witnesses had been examined, a charge was framed against the accused, and the witnesses who were previously examined were cross-examined, but the accused was not questioned further and he entered on his defence. The present case differs from [ENTITY]'s case in this respect that after the charge was framed the prosecution witnesses were not further examined or cross-examined. In that case [ENTITY] J. observed as follows (p. 47):
Now the section says that such examination shall for the purpose aforesaid be made after the witnesses for the prosecution have been examined and before the accused is called on for his defence. That examination must, therefore, come immediately between the two stages so indicated. It seems, therefore, to me that up to the stage indicated by the words ' before the accused is called on for his defence, it is obligatory on the Magistrate to question the accused as regards any circumstances appearing against him, and, therefore, as regards any evidence which may have been recorded up to that point. Therefore, we have to determine when that stage is reached, and if reference is made to [SECTION], I think, no doubt can be felt that that stage is not reached until all which is prescribed by that section has teen completed.
6. That stage in the present case cannot be said to have been reached till November 27, 1928, when the accused said that they did not wish to further cross-examine the witnesses. The Court, in my opinion, has not therefore discharged the obligatory function under [SECTION] of the [ACT] to question the accused generally before the accused is called on for his defence. Though on November 1, before the charge was framed, the accused may have been asked a question as to whether they assaulted the complainant, it is doubtful whether that question would satisfy the requirements of an examination under [SECTION] of the [ACT] for the purpose of enabling the accused to explain any circumstances appearing in the evidence against them. Even assuming that the question put to the accused before the framing of the charge satisfied the requirements of [SECTION], I think the question was put under the first part of [SECTION] when the Court was performing a discretionary function, and in my opinion the Court has failed to perform the obligatory function-under the latter part of [SECTION] after the stage for questioning the accused generally on the case under the latter part of [SECTION] had been reached on November 27, 1928.
7. It may be that in this particular case there may be no real prejudice to the accused by the omission to question him generally on the case under the latter part of [SECTION], but this Court has consistently taken the view that the omission to ask the question is not an irregularity which can be condoned under [SECTION] of the the [ACT] but is an illegality which vitiates the trial. In [PRECEDENT] it was held that where after the examination of the accused under [SECTION] of the [ACT], new prosecution witnesses are examined, it is obligatory on the Magistrate to further examine the accused under the section, and that the omission to do so is an illegality which vitiates the trial. To the same effect is the decision in [PRECEDENT] . In [PRECEDENT] it was held that if the accused has once been examined under [SECTION], it is not obligatory on the Court to question him again after the cross-examination and re-examination of the prosecution witnesses recalled at the instance of the accused under [SECTION] of the [ACT] unless some new matter was brought out in the cross-examination or re-examination. This view was dissented from in Emperor v. [ENTITY] (1924) I.L.R. 50 Bom. 42, S.C. 27 Bom. L.R. 105. The question in such a case is not whether the accused is prejudiced by the omission of the Court to question the accused but whether there is a disregard of the imperative provisions of [SECTION]. According to Sir [ENTITY] in [PRECEDENT], the point may possibly need further examination by the Full Bench in view of the decision of other High Court and the Privy Council decision in [PRECEDENT]. Until the point is authoritatively decided by a Full Bench that the omission to examine the accused under the latter part of [SECTION] of the [ACT] can be treated as an irregularity which can be cured under [SECTION] of the [ACT], I feel that I am bound by the decisions of this Court that the omission to examine the accused under the latter part of [SECTION] is an illegality which vitiates the trial, and that the examination of the accused before the framing of the charge would not be sufficient to dispense with the examination of the accused after the charge is framed, and after he has either declined to examine the prosecution witnesses under [SECTION] or has further cross-examined them.
8. I would, therefore, accept the reference of the learned Sessions Judge, set aside the conviction and sentence passed by the Magistrate and order a re-trial of the accused from the point at which the illegality occurred.
[ENTITY], J.
9. The applicants in this case were convicted of simple hurt under [SECTION] of the [ACT] and were sentenced to pay a fine of Rs. 25 each. The learned Sessions Judge of Poona has reported this case to us on the ground that the Magistrate failed to question the applicants after the charge was framed and on their intimating that they did not wish to cross-examine the prosecution witnesses after the charge and that the Magistrate therefore failed to comply with the provisions of [SECTION] of the [ACT].
10. The facts of the case are that on November 1, 1928, the prosecution witnesses were examined, cross-examined and re-examined On the same day the applicants were under [SECTION] questioned, the charge was as framed and they were asked if they pleaded guilty. They replied in the negative, At the subsequent hearing, on November 9, the applicants were asked if they wished to cross-examine the prosecution witnesses. They replied in the affirmative., but on November 27, they declined to do so and said that they would give a list of defence witnesses. These defence witnesses were examined on December 4 and December 13 and judgment was given on December 14.
11. In his letter of reference the learned Sessions Judge has cited the cases of [PRECEDENT]; [PRECEDENT]; and Emperor v. [ENTITY] (1924) I.L.R. 50 Bom. 42, S.C. 27 Bom. L.R. 105; but in my opinion these cases have little bearing on the matter in hand as the facts were not the same. In the above cases the prosecution witnesses were cross-examined after the accused was questioned under [SECTION] or the accused was not questioned under that section. Here, however, the applicants were questioned under [SECTION] after all the prosecution witnesses were examined and cross-examined, and as the applicants declined to cross-examine them again after the charge was framed there was in fact no further prosecution evidence about which the applicants could have been questioned.
12. In my opinion the provisions of [SECTION] would have been complied with both according to the spirit and letter of the law if the questions put to the applicants had been such as to enable them to explain the circumstances appearing in the evidence against them. As pointed out in [PRECEDENT] at page 46 the intention of the Code is that the accused should be given an opportunity of explaining any circumstances appearing in the evidence against him and this must mean the whole of the evidence. Here the whole of the evidence against the applicants had been recorded when they were questioned. The letter of the law is complied with when, as here, the accused is questioned after the witnesses for the prosecution have been examined and before he is called on for his defence. The learned Sessions Judge appears to rely on a remark on p. 46 of the case of Emperor v. [ENTITY] to the affect that any examination of the accused under [SECTION] before the prosecution evidence is closed cannot possibly fulfil the conditions of the section but that remark was made with reference to the case then under consideration and can be considered as an obiter dictum in respect of the present case where the facts are entirely different. I would hold then that if the learned Magistrate had questioned the applicants generally on the case, on November 1, for the purpose of enabling them to explain the circumstances appearing in the evidence against them, his failure to question them again after their refusal to cross-examine the prosecution witnesses would not have been contrary to the provisions of [SECTION],
13. As a matter of fact only one question was put to each of the applicants and they were merely asked if on a certain date they had beaten the complainant. It can, therefore, hardly be considered that they were questioned generally on the case nor were they asked their explanation though no doubt they could have volunteered one if they had wished to do so. [SECTION] of the [ACT] makes it incumbent on the Court to question the accused generally on the case for the purpose of enabling him to explain any circumstances appearing in the evidence against him. Even if the question put to each of the applicants may be considered as a general questioning on the case, the applicants were not given any intimation that it was open to them to give an explanation, They were not asked their explanation nor were they asked if they had anything to say. In view of this omission the applicants had practically no opportunity of explaining the circumstances against them, and, in my opinion, they were never questioned as required by the latter part of [SECTION]. I, therefore, agree with my learned brother that the trial is vitiated by an illegality and concur in the order proposed.