BHAGIRATHMAL AGARWALLA Vs. SOHANLAL SERAOGI

JUDGEMENT

(1.) THIS is a composite petition under Sections 439 and 526, Criminal P. C. The relief claimed is that two orders dated 8 -4 -1953 and 13 -5 -1953 passed by the trial Magistrate be quashed and that the case be transferred from his Court to the Court of some other competent Magistrate for disposal according to law. The petitioner was the complainant in the trial Court. He instituted a complaint under Section 406 against Sohanlal Seraogi, the accused Opposite Party before us.

(2.) THE complaint was lodged on 20 -11 -1950. The accused was summoned and appeared on 20 -12 -1950. On 5 -5 -1952 -3 prosecution witnesses were examined after no less than 4 adjournments. The case was adjourned again 3 times and on 7th August the complainant and one more prosecution witness were examined. It was on this date that the charge was framed. The accused pleaded not guilty. The case was fixed for cross -examination of prosecution witnesses on 2 -9 -1952.

(3.) HIS contention in regard to the illegality of the order of 13th May is based on the provisions contained in Section 256, Criminal P. C. He points out that Section 256 casts an obligation on the Magistrate to ask the accused to state whether he wishes to cross -examine any and if so which of the witnesses for the prosecution whose evidence has been taken. If he expresses his wish to cross -examine any witnesses, those witnesses have to be recalled and they can be discharged after cross -examination and re -examination, if any. It is pointed out that the accused was not asked, nor did he state that he wanted to cross -examine any witnesses and it is urged that even if it is assumed that the accused wanted to cross -examine all witnesses, they had to be recalled and resummoned in the circumstances of this case. The obligation under Section 256 was entirely on the Court and the failure of the complainant to produce the witnesses did not absolve the Court from its responsibility.