MIRZA MOHD. AFZAL BEG Vs. STATE

JUDGEMENT

(1.) THE facts which have given rise to this reference briefly stated are these. In a conspiracy case before the Special Magistrate the counsel for the prosecution claimed a right under Section 208 (1) of the Criminal Procedure Code to make his opening ad -dress before producing his evidence for examination. Objection was taken by the accused that the prosecution counsel had no right to make an opening ad -dress and that under Section 208 (1) the complainant could only be examined on oath in support of his complaint. The trial Magistrate overruled this objection and held that the complainant had got the right of audience and that right was wide enough to be exercised by the counsel for the prosecution and was not restricted to the complainant alone. Three of the accused, Messrs, Mohd. Afzal Beg, Ghulam Mohd. Chicken and Mohiuddin filed a revision application against that order before the Sessions Judge and the leaened Sessions Judge came to the conclusion that the words 'the Magistrate shall hear the complainant' used in Section 208 (1) meant that 'the Magistrate shall examine the complainant only if he desires to be examined in support of his complaint and the counsel for the prosecution has no right of audience under the above section.' The learned Sessions Judge has made this reference recommending that the order of the Special Magistrate dated 1 -12 -1958 permitting the prosecution counsel to open his case be set aside.

(2.) THIS reference is supported by Mirza Afzal Beg who argued the cose for himself and for other petitioners while the Advocate General opposed the reference.

(3.) FOR the proper appreciation of these points it is necessary to refer to certain provisions in the Code of Criminal Procedure.