B.K. Mullick, J.The petitioner was a Writer Head Constable in the Palkote Police Station in the Chota Nagpur Division. It is alleged that on or about the 1st October 1923 the petitioner was entrusted as a public servant with a sum of Rs. 200 for the purpose of building some quarters at the Police Station. A sum of Rs. 2,600 had been sanctioned by the Police Department and monies had from time to time been spent by the petitioners predecessor Writer Head Constable Shafi-ud-din, but progress being unsatisfactory, the petitioner was sent in September 1923 to relieve Shafi-ud-din of the work and was directed to complete the work under the supervision of the Sab-Inspector. On the 3rd October 1923 the petitioner submitted an account to the Sub-inspector in which it was stated that a sum of Rs. 75 had been spent on the purchase of 125 sal posts from one Rajkishore, that Rs. 20 had been spent on the purchase of certain building frames and that a sum of Rs. 1-8-0 had been paid as wages to 6 collies at 4-annas per cooly. On the 12th October 1923 the petitioner made an application to the Superintendent of Police for a further advance of money, but in the meantime the Superintendent being dissatisfied with the petitioners work had directed that disbursements were no longer to be made by the petitioner but were to be made in the presence of the Sub-Inspector. In December the Superintendent personally visited the Police Station and in the following month he caused an inquiry to be made by Mr. Creed, Assistant Superintendent of Police, with the result that it was discovered that the petitioner had been guilty of criminal breach of trust and falsification of accounts.

2. The petitioner was put upon his trial before the Sub-Divisional Magistrate of Gumla and was convicted of criminal breach of trust in respect of the following sum Rs. 75 falsely alleged to have been paid to Rajkishore for 125 sal posts; Rs. 20 falsely alleged to have been paid to Nageshwar Ram for building frames; and Rs. 0-8-0 falsely alleged to have been paid to 6 coolies. It was found that Rajkishore supplied not 125 but a much smaller number of sal posts and that he gave these from his jungle at the request of the Writer Head Constable without payment. With regard to the coolies, it was found that the Writer Head Constable had paid them not at the rate of Rs. 0-4-0 but at the rate of Rs. 0-2-0 and while charging Government Rs. 1-8-0 he had really spent, only Rs. 0-12-0.

3. The Deputy (Magistrate framed charges under Sections 409 and 477A, Indian Penal Code and he found the petitioner guilty on all counts and sentenced him to rigorous imprisonment for one year and a fine of Rs. 100 for an offence u/s 409 and to rigorus imprisonment for one year for an offence u/s 477A and ordered that the sentences of imprisonment Should be concurrent.

4. On appeal the Judicial Commissioner of Chota Nagpur found that the record was incomplete and by his order dated the 27th August 1924 he directed the Deputy Magistrate to take further evidence. That evidence was taken and upon the return of the record the Judicial Commissioner upheld the conviction in regard to the sums alleged to have been paid to Rajkishore and the coolies but acquitted the petitioner in regard to the sum of Rs. 20 alleged to have been paid to Nageshwar. In the result he affirmed the sentences.

5. In revision it is urged that the petitioner was not entrusted with the money alleged to have been embezzled; that the person entrusted by the Superintendent of Police to spend the money was the Sub-Inspector and that the petitioner was the latters agent.

6. The evidence, however, is, and the learned Judicial Commissioner finds, that the Inspector under the orders of the Superintendent of Police directed the Sub-Inspector to be personally responsible and that the Sub-Inspector was authorized to entrust the accused with the price of the materials required for the building and for the wages of the labourers. The petitioners predecessor Shafi-ud-din had been working on the same principle but he was removed because progress was slow and the only change made when the petitioner took charge was that the responsibility of the Sub-Inspector was emphasised with greater clearness. After the 9th October the trust appears to have been revoked and the Sub-Inspector was directed to pay out the sums himself; but there can be no doubt that on the 1st. October there was a trust reposed in the petitioner as a public servant and it was his duty to account truly for all the monies he received from the Superintendent of Police; it is admitted that he received a sum of Rs. 200 and it is established that no part of the Rs. 75 alleged to have been paid to Raj Kishore was in fact paid, and that the labourers were paid a sum of annas 12 only although in his accounts the petitioner charged Rs. 1-8-0.

7. It has been contended that if by some private arrangement the petitioner was able to induce Rajkishore to deliver the sal posts free of cost, he has committed no breach of trust. The reply is that the trust was not to obtain the posts but to buy the posts; and, therefore, if the petitioner was able to get posts free of cost, it was his duty to refund the unspent balance to Government. With regard to the coolies, they have been examined and their statement that they were paid only half the sum charged has been accepted. The embezzlement, therefore, in respect of Rs. 75-12-0 has been proved.

8. It is contended, however, that there has been a violation of the provisions of Section 342, Cr. P.C. and the trial is bad.

9. Now it appears that after the prosecution witnesses had been examined-in-chief, a charge was framed on the 7th April 1924 for an offence u/s 409, Indian Penal Code. Thereafter on the 29th April one more prosecution witness was examined and the charge u/s 477A was framed. The petitioner was examined on the 7th April before the charge u/s 409 was framed and again on the 29th April before the charge u/s 477A was framed. Between the 29th April and the 3rd May 1924 the witnesses for the prosecution were cross-examined and re-examined and the case was adjourned till the 22nd May for hearing the defence witnesses. There were several adjournments after that date and on the 16th June 1924 the petitioner declined to call witnesses and asked for an adjournment for one day. On the 17th June arguments were heard and on the 23rd. June the Magistrate delivered judgment. It appears that in his statement of the 29th April the petitioner stated that he would file a written statement and this he filed on the 16th June. It also appears that on the 17th June he was again examined by the Magistrate and was asked whether he had anything further to say and he replied in the negative.

10. The argument that there has been an omission to comply with the provisions of Section 342 is put in this way.

11. Relying upon Mitarjit Singh and Others Vs. Emperor, the learned Counsel for the petitioner contends that the petitioner should have been again examined after the cross-examination and re-examination of the prosecution witnesses. If it had been necessary to do so we might perhaps have been inclined to make, a reference to the Full Bench as to the correctness of the decision cited above for the reasons given in Mitarjit Singh and Others Vs. Emperor, has been expressly dissented from and it has been held that where the accused has been examined after the examination of the prosecution witnesses and before he enters upon his defence it is not again necessary to examine him after the cross-examination and re-examination of those witnesses.

12. But here there is no room for the application of the running in Mitarjit Singh and Others Vs. Emperor, at all, for the petitioner was asked on the 17th June whether he had anything more to say.

13. Again on the 16th June the petitioner filed a long written statement explaining the circumstances against him and even if the learned Magistrate had not taken the precaution to examine the accused orally on the 17th June, this written statement would have relieved the Magistrate from the necessity of examining him orally in reference to the matters elicited in the cross-examination and re-examination of the prosecution witnesses.

14. It is contended that a written statement cannot be a substitute for an oral examination; but Section 256 of the Code directs the Court to accept a written statement and, it is intended that the Court should read it; and if an accused states that he will file a written statement, the writing, in my opinion, is to be accepted in lieu of his oral statement.

15. Then it has been urged that the accused should have been re-examined after the examination of the witnesses for the prosecution was taken on remand. The answer to this is that in Section 428 of the Code there is no such provision and as the examination of witnesses after remand may be made even in the absence of the accused the provisions of Section 342 do not apply to it. It was open to the learned Judicial Commissioner to direct further examination of the accused but he did not choose to do so and there was no irregularity or illegality on the part of the Sub-Divisional Magistrate who was not called upon to do more than what was ordered.

16. The result, therefore, is that, in my opinion, there has been no evasion of the provisions of Section 342.

17. In any event the objection is based on the purest of technicalities and has neither principle nor experience to support it Principle requires that the accused shall not be convicted without being given an opportunity of explaining the allegations against him: experience shows that judicial questioning must not become inquisitorial. If these essentials are secured, the trial cannot be impeached. In this respect there has been no material variation in the successive Cr. P.C. in this country, namely, Act XXV of 1861 (the first Cr. P. C) Act VIII of 1869, Act X of 1872, Act X of 1882 Act V of 1898 and Acts XII and XVIII of 1923. While the language of the earlier Codes is that the Court may examine the accused the Code of 1882 prescribes among the general provisions applicable to all trials that the Court shall, examine him after the prosecution witnesses have been examined and before he is called upon to enter into his defence, but this has made no material difference. And the Select Committee on the Bill of 1882 state their object and reasons thus:

We think that the present law gives too great a latitude to the Courts with regard to the examination of an accused person. The object of such an examination is to give the accused an opportunity of explaining any circumstances which may tend to criminate him, and thus to enable the Court, in cases where the accused is undefended, to examine witnesses: in his interest. It was never intended that the Court should examine the accused with a view to elicit from him some statement which will lead to his conviction. We have, therefore, limited the power of interrogating the accused by adding to the first paragraph the words "for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him. We think the accused should always have this opportunity of explaining and we have, therefore, required the Court to question him generally for the purpose before he enters on his defence

18. It is obvious that the Legislature in India has from the outset deliberately departed from the Codes prevailing in most countries on the continent of Europe and has adopted with modifications the law of England. On the continent of Europe the interrogation of the accused by the Judge is not only the first but also the most important part of the whole trial. The accused is cross-examined with the utmost severity and every opportunity is taken to obtain an admission of guilt from him. In England the Court has from the earliest times been prohibited from putting questions to the accused; but it could not for that reason be said that the accuseds mouth was shut. On the contrary, as he could not be defended by Counsel in cases of felony and as the prosecution evidence operates as so much indirect questioning, his only chance of obtaining an acquittal was to cross-examine and to speak for himself. After the Revolution of 1688 the law was considerably amended and the result now is that in inquiries before commitment the prisoner at the close of the evidence for the prosecution is asked by the Magistrate or Justices whether he wishes to say anything and is warned that if he chooses to do so what he says will be taken down and may be given in evidence on his trial. With this exception it may be generally said that the prisoner is protected against all judicial questioning before or at the trial; but he may, whether defended by Counsel or not, always make a statement to the Judge though Judges have not always been agreed as to the stage at which the prisoner is to make the statement, some holding that it should be before and some alter the address of the prisoners Counsel. It is the duty of the Judge, when the prisoner is not defended by Counsel, to inform him of his fight to Cross-examine the witnesses, to, address the Jury, to give evidence on his own be half or to make an unsworn statement; but omission to give this information does not invalidate the conviction. R. v. Saunders (1899) 63 J.P. 24 : 15 T.L.R. 104. Since the Criminal Evidence Act of 1898, (61 & 62 Vic. C. 36), the prisoner has the right to give evidence in his own behalf, but the omission on his part to give evidence cannot be commented upon by the prosecution.

19. The provisions clearly indicate that the object of the Legislature is to give the prisoner every opportunity to lay his case before the Court and to protect him against anything in the nature of cross-examination by the Judge.

20. In my opinion the present law in India has the same principle in view. The prisoner is not yet permitted to give evidence in his own behalf, but the judicial questioning, which the Code enjoins, is intended within limits to take its place. It is not, necessary that the purport of the evidence of each prosecution witness should be explained to the prisoner if he is himself present at the trial and has heard what the witnesses have said. What is necessary is that he should be given an opportunity before entering upon his defence as in England to state generally what are the real facts in reference to the complaint. If he is defended or if he files a written statement judicial questioning will generally add but little to the Courts knowledge, nor will a violation of any rule as to the stage at which he is to be examined make much difference if he has not been prejudiced the error ought not to vitiate the trial.

21. It is, however, contended that the provisions of Section 342 have not been enacted solely for the benefit of the accused and that it is part of a scheme for the punishment of crime, any deviation from which renders the trial null. I am unable to comprehend the precise import of this contention. Every contravention of the Code in a matter of procedure is a deviation from the scheme but the law does not on that ground make the consequence fatal to the trial. If it is contended that the Court cannot do justice unless it hears the accused speak and as has been said elsewhere, the examination is a solemn proceeding between the Court and the accused into which Counsel do not enter, the reply seems to me to be that the principle of the Indian law is that the accused should be convicted not upon his statement but upon independent evidence. The accused cannot be questioned in order that gaps in the prosecution case may be filled up and if the Court is already in possession of his version of the case the oral examination cannot make much difference. Therefore, if he is defended by Counsel who advises him not to speak or instead of making an oral statement he chooses to file a written statement the scheme has no chance of operating. The Code itself provides for this evasion in cases in which the personal attendance of the accused is dispensed with either u/s 205 or Section 540A.

22. The result is that in every case the test is whether there has been prejudice to the accused by reason of the absence of judicial questioning and whether the defect is cured by Section 537 of the Code. It is said that an express violation of the terms of the Statute must always vitiate the trial and reliance is placed on Subramania Ayyar v. Emperor 25 M. 61 : 28 I.A. 257 : 11 M.L.J. 233 : 3 Bom. L R. 540 : 5. C.W.N. 866 2 Weir 271 : 8 Sur. P.C.J.160(P.C). But the observations of their Lordships of the Privy Council in that case must be read with reference to the particular facts before them. Their Lordships held that a misjoinder of charges is as fatal in a criminal trial as in a civil trial because the defect goes to the root of jurisdiction. If the Statute debars a Court from trying more than a certain number of charges the violation is not an irregularity but is an usurpation of jurisdiction. In other words the constitution of the suit is such that the Court is not permitted to try it. That principle, however, cannot apply to a violation of the provisions of Section 342.

23. Finally it has been contended that there has been a violation of the provisions of Section 360 of the Code because the depositions of the witnesses were not read over as required by that section. The ground taken in the petition before us is put very generally and runs thus "For that the provisions of Sections 342, 360 and 428 of the Cr.P.C. have not been complied with." It is not stated whether the omission took place in regard to all or only some of the witnesses; nor what was the precise nature of the defect. The point really involves a question of fact and it was never raised before the Judicial Commissioner either at the first or the second hearing before him. In the circumstances we must assume that the witnesses did actually say what was recorded in the depositions upon which the Judicial Commissioner affirmed the conviction of the accused. It was open to the petitioner to show that the record of the depositions was wrong, but no attempt to do so was made. The Judicial Commissioner who was a Court of fact was the proper authority for investigating the charge.

24. We cannot, therefore, accept then objection in regard to the depositions. Here also the question arises whether the violation, if any, of Section 360 will vitiate the trial; the test again will be whether the accused has been prejudiced. If the accused is not prejudiced, nothing short of an illegal or irregular exercise of jurisdiction should vitiate the trial.

25. The result is that the conviction will be affirmed and having regard to the fact that the petitioner is a public servant and that he has not only committed embezzlement of public money but has been guilty of an illegal exaction, I do not think that the sentence is unduly severe.

John Bucknill, J.

26. I have only a few observations to add. Firstly as to the suggestion that if the applicant succeeded in getting the timber given to him for nothing, he could rightly pocket the money with which the Government had supplied him for the purchase of the timber. I think this suggestion is fallacious. The applicant is in a fiduciary position to the Government and any advantage of any good bargain obtained by him in any transaction in which ho acted on behalf of the Government must enure to the Government and not to the applicant. If A hands B (his agent) Rs. 100 and instructs B to buy for him (A) an article and B succeeds in purchasing the article for Rs. 20, can it possibly be seriously contended that B. can conceal that fact from A and pocket the balance o[ Rs. 80. To my mind the suggestion is really an absurd one and, in the present case, the applicant was clearly guilty of criminal breach of trust in acting as he did.

27. Secondly as to Section 342 of the Cr. P.C. the applicant was undoubtedly examined on April the 7th and again on April the 29th; on that latter day he intimated he would file a written statement and he did so considerably later, namely, on the 16th June. He declined to call any witnesses but asked for one days adjournment and on June the 17th the Magistrate asked him if he had anything more to say, to which he said "No". Then the matter went to and was remanded back by the Judicial Commissioner of Chota Nagpur; the Judicial Commissioner ordered the remand so that further witnesses should be examined.

28. Now there are two points urged here: (1) that the provisions of Section 342 were not complied with at the trial; and (2) that they were not complied with after the remand. As to the first point on April 7th the prosecution witnesses had been examined-in-chief; and on that day the charge was framed and the applicant was formally examined; after that examination a new charge was drawn up by the Magistrate. The applicant was also examined on the 29th when he said he would file a written statement; and after that second examination a further new charge was added by the Magistrate. After this the prosecution Fitnesses were cross-examined and then on the 16th June the applicant filed his written statement; he then intimated at this same time that he would call no witnesses but merely asked for one days adjournment. This was granted and on the following day, that is to say on the 17th, he was then asked by the Magistrate if he had anything to add, presumably, to his written statement. He replied in the negative.

29. It is contended that this procedure would not "satisfy the requirements of Section 342. I am of the opinion that this procedure was sufficient and I have recently in another case expressed my view that if at the close of the prosecution case an accused states that he is going to file a written statement and does so, he need not be really asked anything further by the Magistrate. I agree with my learned brother that the written statement here was rightly taken in place of a further oral statement; but here the position was even better than that, for he was asked, after he had filed his written statement, if he wanted to say anything in addition.

30. Then secondly as to what took place when the Magistrate took the fresh evidence on remand, it is said the applicant should again have been cross-examined by the Magistrate; but as my learned brother has pointed out the Code itself does not contemplate or provide for this.

31. I am not prepared to say; however, that any hard and fast rule can be laid down with regard to when the provisions of Section 342 are and are not properly complied with: I am ready to admit that even in conceivable cases where fresh evidence on a remand has been taken the applicant ought to be given an opportunity of making a statement i.e., in effect of being examined by the Magistrate; but I do consider that, provided the accused has in fact had a reasonable and substantial opportunity of exercising the privilege accorded to him by the provisions of Section 342, that is of either orally, or in writing saying what he wishes to say in explanation of what has been alleged against him, a technical failure or omission, in the procedure ought not to be regarded as rendering a trial wholly nugatory. Should such omission or failure be shown to have prejudiced the accused, the matter of course assumes a different aspect and can and should be remedied; but not, in my view otherwise.

32. Lastly as to the provisions of Section 350 of the Cr. P.C., I have no doubt from what is told me at the Bar that the provisions of this section are but complied with somewhat meagerly and that a really strict compliance presents some difficulties. Nevertheless it is very easy to allege irregularities but if they are alleged they must be proved as facts; for on such proved facts alone could any legal argument that the non-compliance with the provisions of this section should affect adversely the validity of the trial be based. This Court in its Revisional Jurisdiction does not appear to me to be a Court which is, where there already is a decision of the Subordinate Appellate Court, the proper tribunal for the consideration of such a matter. If there was in fact a non-compliance with the provisions of section it might indeed with advantage be then and there drawn to the attention of the Trying Court. At any rate it certainly should be raised and proved before the Subordinate Appellate Court: but if no attempt is made to do so there, I do not think, it can well be raised for the first time here.

33. Once more I wish to guard against laying down here any hard and fast rule; for I feel that should serious prejudice be shown to have been occasioned to the accused by any failure or irregularity in carrying out the procedure of Section 360, then this Court might still think fit to interfere; but not on such generalisations as "the provisions of Section 360 were not complied with" but only on substantive and clearly authenticated statements.

34. I agree that this application should be rejected and bearing in mind that the applicant is a Government servant and a Police Officer, I do not think that in view of the fact that the accused was handling Government money the sentence is altogether too severe.