BEPIN BEHARI MAITY Vs. PABAN SARDAR

JUDGEMENT

(1.) This Rule was obtained against an order of the learned Mag. of Alipore acquitting tinder Section 258, Cr. P. C., the opposite parties against whom a charge had been framed under Section 379, Penal Code, after which the learned Mag. passed the following order : "To 6-3-50 for cross-examination of P. Ws. & further P. Ws. P. Ws. to give P. R. of Rs. 10 each. Accused as before." On 6-3-1950 neither the complainant nor the witnesses were present. No petition was filed on behalf of the complainant to explain this absence. The learned Mag. pointed out in his order of 6-6-1950, that the record of the case would show that the complainant did not take steps for summoning his witnesses for that dav. He held also that the evidence of the witnesses on the record could not be admissible under Section 33, Evidence Act, as there was nothing on the record to show that the witnesses were absent on one or other of the grounds mentioned in that section. He pointed out that the witnesses had not been tendered for cross-examination & even the lawyer for the complainant was absent & no reason had been given why they were absent, & finally he held that there being no evidence on record against the accused persons they were acquitted under Section 258, Cr. P. C.

(2.) A case was sought to be made before us that the reason why the complainant was not present with his witnesses on the 6th. March was due to a misunderstanding of the date & that they were under the misapprehension that the date fixed was not the 6th March but 16-3-1950. We are not satisfied that there was any such misunderstanding & we are not disposed to interfere with the order passed by the learned Mag. on that ground.

(3.) The question however remains whether when the complainant & his witnesses did not appear on the date fixed in spite of the fact that personal recognizance bonds had been taken from the witnesses it was the duty of the Mag. to take further steps for recalling them under the provisions of Section 256, Cr. P. C. The learned Mag. is apparently of the view that it was the duty of the complainant to produce those witnesses & as the complainant did not produce the witnesses & consequently the accused had no opportunity to cross-examine the witnesses, the evidence given in examination-in-chief could not be considered & it was in this view that he held that there was no evidence on the record.