JUDGMENT Lort-Williams, J. - In this case a Rule was issued on the ground that the provisions of s. 342, Criminal Procedure Code, had not been complied with. The facts of the case are immaterial other than to state that after the witnesses for the prosecution had been examined the learned Magistrate took the statement of the accused under s. 342, Criminal Procedure Code, and that subsequently the prosecution witnesses were cross-examined on behalf of the accused and no further examination of the accused was made under the section. 2. The learned Advocate who appeared for the Crown has argued that this is not an illegality which vitiates the whole trial and that in fact the accused was not prejudiced by this omission to examine him at the end of the case for the prosecution and he refers us to a decision in the case of Emperor Vs. Ermanali and Others, AIR 1930 Cal 212 . It is difficult to say in a case such as this that no prejudice has been caused to the accused. Under cross examination the prosecution witnesses might have given evidence which materially affected the prisoner and he had no further opportunity of dealing with that evidence or explaining it. An omission of this kind, in our opinion, cannot be cured under the provisions of s. 537, Criminal Procedure Code, even had we been of another opinion, the point has been decided already in the case of Promotha Nath Mukhopadhya Vs. Emperor, AIR 1923 Cal 470 and in the case of Mazhar Ali Vs. Emperor on the Company of Huli Das, 71 Ind. Cas. 662 . In the latter case on the facts admitted it had been shown clearly that the accused did not suffer any prejudice but nevertheless the Court held that such an omission vitiated the trial. In the circumstances we have no alternative but to order a re-trial of the case. The re-trial will commence from the point immediately antecedent to the examination for the accused. 3. The petitioner will remain on the same bail. Rule made absolute. S.K. Ghose, J. I agree.