JUDGMENT & ORDER : 1. The five applicants before me Nathudas, Harisingh Nirbhayesing, Nathudas s/o Tulsidas and Gopaldas have been convicted by the Additional District Magistrate of Mandsaur for an offence under Section 366, I.P.C. and sentenced to four years' rigorous imprisonment each. Their appeal against their convictions and sentences was dismissed by the Sessions Judge, Mandsaur. The accused persons have now preferred the petition to revise the decisions of the Courts below. 2. Before me the conviction of the applicants is challenged on the ground that the examination of the accused persons under Section 342 of the Code of Criminal Procedure was contrary to law. It was said that the applicants were prosecuted for having abducted one Mussamat Janibai aged 30 years on the night intervening between the 2nd of January and 3rd of January 1951 with intent that she may be compelled to marry one Gopaldas, and that the charge framed against the applicants also mentioned that the alleged incident took place on the night of 2nd January 1951; but that the Magistrate put to each of the accused the question viz., whether he along with his companions forcibly removed Janibai on 6th January 1951 from the house of Jagannath. It was argued that as the accused persons were never asked to explain the circumstances appearing in the prosecution evidence relating to the alleged incident on 2nd January 1951, they could not be convicted under S.366, I. P.C. in respect of the incident of 2nd January 1951. The learned Government Advocate concedes, and it is also clear from the record that in the questions put by the Magistrate to the accused persons, the date of the occurrence has been mentioned as 6th January 1951. But it is contended by the learned Government Advocate that this is an error which has not caused any failure of justice and that in view of the provisions of Sections 225 and 547, Criminal Procedure Code, the convictions of the applicant cannot be set aside solely on the ground of this error. 3. In my opinion, there is considerable justification in the criticism made by the learned counsel for the applicants that the accused persons had no opportunity of explaining the circumstances relating to the alleged offence of 2nd January 1951 with which they were charged. 3. In my opinion, there is considerable justification in the criticism made by the learned counsel for the applicants that the accused persons had no opportunity of explaining the circumstances relating to the alleged offence of 2nd January 1951 with which they were charged. The provisions of Section 342, Criminal P.C. are mandatory and under these provisions the Court must question the accused after the examination-in-chief, cross examination and reexamination of the witnesses for the prosecution, with a view to enable him to explain the circumstances appearing in the evidence against him. Under sub-section (3) of Section 342 the answers given by the accused may be taken into consideration by the Court. The nature and importance of the examination of the accused under Section 342 of the Criminal P.C. has very recently been stressed by the Supreme Court in - 'Tarasingh v. State; AIR 1951 SC 441 . It has been observed in that case that Section 342, Cr.P. Code requires that the accused should be examined for the purpose of enabling him "to explain any circumstances appearing in the evidence against him" and that if the accused is not questioned at all and is not given an opportunity of explaining the circumstances which are intended to be used against him, then the judgment convicting him is defective. It has also been pointed out in that decision that every error or omission in the examination of the accused under section 342 would not necessarily vitiate the trial, unless by that error prejudice has been occasioned or is likely to have been occasioned to the accused. It is thus clear that the Magistrate is not competent to question the accused regarding any fact which does not appear in the prosecution evidence against him, and if he does, both the question and the answer to it must be disregarded. In the present case the question that was put to each of the accused applicant was whether on 6th of January 1951, he along with other accused persons forcibly removed Janibai from the house of Jagannath with the intention of taking her to Lasudiya and compelling her to marry Gopaldas. This question on the face of it does not relate to the alleged offence of 2nd January 1951 about which the prosecution tendered evidence. This question on the face of it does not relate to the alleged offence of 2nd January 1951 about which the prosecution tendered evidence. The main question for determination in this case is whether if the reference to the date in the questions put by the Magistrate was an error, the applicants understood it to be so, and gave in fact explanations relating to the circumstances about the offence on 2nd January 1951 with which they were charged. This must be determined by the replies which the accused persons gave to the questions put to them in the examination under Section 342, Criminal Procedure Code. Each of the accused-applicants gave very general answers denying any knowledge and also denying that they removed Janibai or were taking her to Lasudiya. There is nothing in these answers to suggest that they were well aware of the fact that the Magistrate was really questioning them as regards the circumstances of the incident of 2nd January 1951 appearing in evidence against them and that their denial was about these circumstances. That being so, I think it must be presumed that the applicants were not examined at all as regards the circumstances connected with the alleged offence on 2nd January 1951, and that they have been prejudiced by failure of the Magistrate to give them an opportunity to explain the circumstances appearing in the prosecution evidence against them. The learned Sessions Judge has observed that by this error no prejudice has been caused to the applicants in their defence. In making this observation, I think the learned Judge has failed to conceive the possibility that the accused might have set up a plea of alibi in regard to the alleged occurrence on 2nd January 1951. 4. The next question for consideration is whether a retrial of the accused persons should be directed. Counsel for the applicant maintains that in view of the fact that the applicants have already served 9 months' rigorous imprisonment and also of the fact that there are many serious defects in the prosecution case, it would not be in the interests of justice to direct a retrial of the applicants.I am inclined to agree with this submission. Counsel for the applicant maintains that in view of the fact that the applicants have already served 9 months' rigorous imprisonment and also of the fact that there are many serious defects in the prosecution case, it would not be in the interests of justice to direct a retrial of the applicants.I am inclined to agree with this submission. It appears to me on a careful consideration of the material on the record that the investigation in this case, has been so perfunctory and the evidence of Janibai and other prosecution witnesses is so lacking in details as to the specific acts of each of the accused persons and the intention with which she was alleged to have been abducted by them, that I do not think any useful purpose will be served by ordering a retrial. 5. For the above reasons I accept the revision-petition and quash the convictions and sentences imposed upon the applicants. They shall be set at liberty forthwith.