Report No. 41
24.41. Stephen's criticism.-
Discussing the history and scheme of his section in his History of the Criminal Law of England,1 Stephen writes.-
"The words specifying the purpose for which questions are to be asked were not in the Code of 1872, which authorised the examination of the accused without assigning any reason for it. Perhaps the expression was introduced in the Code of 1882 in order to soften what many people consider a harsh proceeding. For my own part I regret the alteration. It will either be inoperative or most embarrassing, and it looks like an apology for what does not require one.
It is, however, hypocritical, for the Code contains no provision as to what is to happen if the questioning does not conform to the directions of the Code, and it specifically enacts that 'the court and jury (if any) may draw such inference from' the refusal of the accused to answer or from his answers as they please. Besides, in practice, every question any one could want to ask might be justified by the terms of the section; e.g. 'The witnesses say they saw you at this place. Were you there or not, and, if not, where were you?'. The words thus make hardly any difference."
1. Vol. 3, p. 335.
24.42. Law in England.-
At another place in the same treatise,1 however, Stephen has expressed himself in favour of questioning the accused at the trial. After tracing the history of the law on this point in England, he writes:
"This state of the law continued till the year 1848, when by 11 & 12 Vict., c. 42, the present system was established, under which the prisoner is asked 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. The result of the whole is that as matters stand the prisoner is absolutely protected against all judicial questioning before or at the trial, and that, on the other hand, he and his wife are prevented from giving evidence in their own behalf. He is often permitted, however, to make any statement he pleases at the very end of the trial, when it is difficult for any one to test the correctness of what is said.
"This is one of the most of characteristic features of English criminal procedure, and it presents a marked contrast to that which is common to, I believe, all continental countries. It is, I think, highly advantageous to the guilty. It contributes greatly to the dignity and apparent humanity of a criminal trial. It effectually avoids the appearance of harshness, not to say cruelty, which often shocks on English spectator in a French court of justice, and I think that the fact that the prisoner cannot be questioned stimulates the search for independent evidence. The evidence in an English trial is, I think, usually much fuller and more satisfactory than the evidence in such French trials as I have been able to study.
"On the other hand, I am convinced by much experience that questioning, or the power of giving evidence, is a positive assistance, and a highly important one, to innocent men, and I do not see why in the case of the guilty there need be any hardship about it. It must be remembered that most persons accused of crime are poor, stupid and helpless. They are often defended by solicitors who confine their exertions to getting a copy of the depositions and endorsing it with the name of some counsel to whom they pay a very small fee, so that even when prisoners are defended by counsel, the defence is often extremely imperfect, and consists rather of what occurs at the moment to the solicitor and counsel than of what the man himself would say if he knew how to say it.
When a prisoner is undefended his position is often pitiable, even if he has a good case. An ignorant uneducated man has the greatest possible difficulty in collecting his ideas, and seeing the bearing of facts alleged. He is utterly unaccustomed to sustained attention or systematic thought and it often appears to me as if the proceedings on a trial, which to an experienced person appear plain and simple, must pass before the eyes and mind of the prisoner like a dream which he cannot grasp."
1. Stephen History of Criminal Law of England, Vol. 1, pp. 44.-442.
24.43. Is section 342 redundant in view of section 342A?.-
It has been suggested that after the enactment of section 342A which enables the accused to enter into the witness box if he so chooses and give evidence, section 342 is redundant and can be safely omitted. A view has also been expressed that the elaborate examination contemplated by this section leads to needless delay. At least where the accused is represented by counsel, it should be unnecessary to examine the accused, because his counsel is bound to put forth, whatever explanation there is to be offered.
As against this it has to be borne in mind that there are several offences (such as receipt of stolen property) which are of such a nature that the accused has to give his explanation, because in the absence of a reasonable explanation1 the accused runs the risk of being convicted by the court relying on section 114, illustration (a) of the Evidence Act. 1872. The provisions of the Prevention of Corruption Act, 1947, and other special laws which enable the court to hold the accused guilty unless he can satisfactorily account for his possession of property or other articles may also be referred to in this connection. Section 342 of the Code affords the accused the only opportunity of giving such an explanation without running the risk of facing cros.-examination.
1. G. Feller, AIR 1943 PC 211; Hori Lal, ILR 56 All 250.
24 44. Need for examination of accused.-
Furthermore, differing from civil cases in this respect, the parties in criminal cases are not equally placed. The whole machinery of the States is against the accused. The accused has no investigating machinery, no power of search and no power of questioning, which the prosecution has. If he puts forth a definite case, he may not in many cases be able to prove it. This is also the reason why in civil cases preponderance of evidence is sufficient, but in criminal cases a shadow of doubt operates in favour of the accused.
Even where the State provides counsel for the accused, experience shows that the Court has to guide counsel who is usually a junior member of the Bar. In this state of affairs, examination of the accused under section 342 appears to be essential proceeding. The mode of applying the section would, no doubt, vary with the knowledge intelligence and experience of the Judge. If in a particular case the Judge exceeds the permissible limit and subjects the accused to an inquisitorial examination, the superior courts will correct the error. The words "question him generally" in the section are clearly intended to prevent unfair interrogation of the accused.
24.45. Section 342 should be retained.-
We have, after considering the various aspects of the matter as summarised above, come to the conclusion that section 342 should not be deleted. In our opinion, the stage has not yet come for its being removed from the statute book. With further increase in literacy and with better facilities for legal aid, it may be possible to take that step in the future.
24.46. Section 342(1.-Two kinds of examination.-
The examination of the accused under section 342 is of two kinds.-
(a) the power of the court to put a particular question to him at any stage for the purpose of enabling him to explain any circumstance appearing in the evidence against him, and
(b) the duty of the Court to generally examine him (after the close of the prosecution evidence) for the above purpose.
The object of the examination in each case is the same. But the first is optional, while the second is mandatory. The first can be at any stage of the inquiry or trial, while the second is after the witnesses for the prosecution have been examined, and "before the accused is called upon to enter upon his defence". The first is particular; while the second is general. These points of difference between the two would be brought out more clearly if each is dealt with in a separate clause, and we recommend that su.-section (1) may be split up into two clauses, each clause dealing with one kind of examination.
24.47. Application to summons cases.-
There is a conflict of decisions on the question whether section 342 applies to summons cases. Most High Courts have taken the view1 that it does so apply, but a contrary view2 has been taken by some High Courts.
1. Khacho Mal v. Emp., AIR 1926 All 358; Sita Ram v. Emp., AIR 1935 All 217; Ram Dhiraj v. State, AIR 1956 All 167; Balkrishna v. Emp., AIR 1931 Born 132; Gulam Rasul, AIR 1921 Pat 11.
2. Ponnuswami, AIR 1924 Mad 15; Vidyanand, AIR 1962 AP 394.
24.48. Examination of pleader in places of accused.-
Where the Court has dispensed with the personal attendance' of the accused, is it necessary that his pleader should be examined under section 342 or should such examination be of the accused himself? There is also a controversy on this point, and different views have been expressed both as to what the law is and as to what it should be. One view is that the accused himself should be examined in all cases, and even where his personal attendance has been dispensed with at other hearings, the court must require him to be present for examination under section 342.
Another view is that where it is not a serious case and personal attendance has been dispensed with, the court may also dispense with the examination of the accused or of his pleader. It is against the intendment of section 342 to examine the pleader instead of the accused and such examination serves no useful purpose.
The question came up before the Supreme Court in a case1 decided recently. After noting the sharp conflict of judicial opinion, the Supreme Court referred to the decision of the Calcutta High Court in Prova Debi v. Fernandes, AIR 1962 Cal 203 and said.-
"In that case a Full Bench of the Calcutta High Court by a majority decision held that the Magistrate may in his discretion examine the pleader on behalf of the accused under section 342. This view is supported by numerous decisions of other High Courts, but from time to time many judges expressed vigorous dissents and came to the opposite conclusion. The two sides of the question are ably discussed in the majority and minority judgments of the Calcutta case. After a full examination of all the decided cases on the subject, we are inclined to agree with the minority opinion."
A third view is that the pleader should be examined in such cases, but the law should also provide that the answers given by the pleader shall not be put in evidence against the accused in any other inquiry or trial for any other offence which the answers of the pleader may tend to show that the accused has committed. It would not, according to this view, be proper to totally dispense with the examination of both the accused and his pleader. There should be something on the record to show the explanation either of the accused or of his pleader.
A suggestion intended to simplify the matter was also considered by us, namely, in summons cases, no examination of the accused under section 342 should be necessary, and neither the accused nor the pleader need be examined; but in all other cases, the accused person should be examined personally. A more limited form of this suggestion was also considered by us, namely, that in summons cases in which the personal attendance of the accused is dispensed with, section 342 should not apply, and neither the accused nor the pleader need be examined.
1. B.B. Das Gupta v. State of West Bengal, (1969) 1 SCJ 867 (869).
We have, on a consideration of the various views expressed in the matter, come to the conclusion that.-
(a) the section does, and should, apply to all inquiries and trials, including commitment inquiries and trials of summons cases, and to make this position clear, the words 'In every inquiry or trial' should be inserted at the beginning of su.-section (1);
(b) in summons cases where the personal attendance of the accused has been dispensed with, either under section 205 or under section 540A, the court should have a power to dispense with his examination; and
(c) in other cases, even where his personal attendance has been dispensed with, the accused should be examined personally.
24.50. Amendment of section 342(1) recommended.-
We accordingly recommend that section 342(1) be revised as follows.-
"(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Cour.-
(a) may, at any stage without previously warning the accused, put such questions to him as the Court considers necessary, and
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:
Provided that in a summon.-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).