ASWINI KUMAR BHOWMICK Vs. DWIJEN DEY

JUDGEMENT

(1.) SHRI Aswin Kumar Bhowmick has filed this appeal against the order of learned Magistrate First Class, Sadar, dated 27.12.1963, whereby he acquitted the opposite party from the charge under Section 406, I.P.C., in C.R. Case No. 340 of 1959.

(2.) THE relevant facts are as follows:

(3.) THE learned Counsel for the appellant contended that in a warrant case after the charge is framed, it is the duty of the Magistrate under Section 256 to recall the prosecution witnesses so as to enable the accused to cross -examine them He further pointed out that where the offence is a cognizable one the complainant is not bound to pay the process fee for summoning the witnesses. Where the complainant requests the Court to summon the witnesses for cross -examination, it is Court's look out to issue coercive process to secure their attendance as permitted by law. In the case of official witnesses, the Court Should realise that it would not be possible for the complainant to secure their attendance and should issue summons on them through official channel, for their appearance in Court on the date fixed for their cross -examination. Where the Court does not take steps to enforce the attendance of the prosecution witnesses for cross -examination and the witnesses are not present for the date fixed for cross -examination, expunging of their evidence from the record on the ground that the complainant was not vigilant is prosecuting the case is not justified. He pointed out that in the instant case the absence of the witnesses was due to no steps being taken by the trial Court to secure their attendance on the date of hearing, therefore, the acquittal order passed by, the learned Magistrate is illegal and it must be set aside.