NGOUNIPU KABUI Vs. LUNGBUJEI KABUI

JUDGEMENT

(1.) THIS is a reference made by the Sessions Judge, Manipur, under Section 438, Criminal P.C. to set aside the order of the First Class Magistrate, Manipur, dated 1.1.1966, passed by him in Criminal Case No. 130 of 1965 refusing to examine three witnesses, who were cited by the deceased complainant in the complaint petition filed by him and to examine another witness, who is the brother of the deceased complainant.

(2.) ONE Ngounipu Kabui filed a criminal case on the file of the First Class Magistrate, Manipur, against the respondents under Sections 447 427 and 143, I.P.C., on 18.1.1965 alleging that the respondents committed offences of criminal trespass on the land in his actual possession and criminal mischief by dismantling his shed and fencing and by destroying vegetables grown by him. He cited seven witnesses including himself in the complaint petition. He died during the pendency of the criminal case and his widow (the petitioner herein) continued the proceedings. The Magistrate examined three witnesses out of the list and the petitioner. On the ground that the prosecution closed the evidence on 1.10.1965 the Magistrate heard arguments and framed charges against the respondents on 21.10.1965. The respondents pleaded not guilty to the charges. They wanted to cross -examine all the four prosecution, witnesses, who were previously examined before the charges were framed.

(3.) WITH regard to the first aspect of the case that the Magistrate should have examined the remaining three witnesses under Section 356(1), Cr.P.C., at the request of the petitioner, the contention of the petitioner's counsel is that the Magistrate went wrong in rejecting the petition of the petitioner. The Magistrate states in his order that the remaining witnesses (mentioned in the complaint petition and who were not examined) could not be examined, because the prosecution closed its evidence once for all, that there is no provision in the Criminal Procedure Code, which enables the prosecution to reopen its side and that though the petitioner's counsel relied on a number of rulings in support of his contentions that they can be examined, still the rulings have, no bearing on the point urged by him. The Magistrate did not mention the rulings at all in his order. To say the least, his order is perverse.