NETI LAL MANDAL Vs. NAKCHEDI MALLAH

JUDGEMENT

(1.) This appeal under Section 417(3) of the Code of Criminal Procedure is directed against an order of the Magistrate dated 23-9-1959, by which he acquitted the accused persons, i.e., the respondents, under Section 258(I) of the Code, on the ground that the prosecution witnesses had not turned up on. that day for cross-examination.

(2.) The appellant filed a, petition of complaint on 5-12-1958 against the respondents, who were ordered to be summoned by the Sub-divisional Magistrate on 6-l2-l908. The trying Magistrate framed charges against the respondents on 20-7-l959 under Sections 143 and 379 of the Penal Code and fixed 4-8-1959 for cross-examination of the witnesses, as the accused claimed to be tried. The case was adjourned on 4-8-1959 to 24-8-1959 on the ground that the Magistrate was busy otherwise, though the complainant and five prosecution witnesses were present. On the next date, the case was adjourned to 7-9-1959 on the ground that the defence lawyer was busy otherwise, though the complainant was present with five witnesses. On the next two dates, i.e., 7-9-1959 and 8-9-1959, also the case was adjourned at the request of the accused persons, though the complainant was present on these dates with some witnesses On the next date, i.e. 23-9-1959, the complainant and his witnesses were absent, and the Magistrate acquitted the accused. The relevant portion of his order reads thus: P. W. 2 was X-exd., only and the other P. Ws have not been X-exd. In absence of the P. Ws. the evidence of the P. Ws. cannot be looked into until they are X-exd., and discharged. The evidence therefore is expunged and the accused persons are acquitted as there is no material on the record to find them guilty. The accused persons are therefore acquitted Under Section 258(1) Cri. P.C. There has been no appearance on behalf of the respondents in this Court.

(3.) The learned Advocate for the appellant has contended that the order of acquittal was illegal for want of compliance with the provisions of Sections 256(1) and 258(1) of the Code. Section 256(1) requires that, if the accused claims to be tried after the charge has been framed, he shall be required to state whether he wishes to cross-examine any witness, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. In the present case, the orders of the Magistrate do not indicate that he complied with this provision. The order dated 20-7-1959 merely states that the accused claimed to be tried, and 4-8-1959 Was fixed for cross-examination of the prosecution witnesses. Section 258(1) lays down that if in any case in which a charge has been framed the Magistrate finds the accused not guilty, he shall record an order of acquittal. On 23-9-1959 the Magistrate had before him at least the evidence of one prosecution witness who had been cross-examined; but he acquitted the accused without discussing the evidence of even this witness.