STATE Vs. KAMAL JAT

JUDGEMENT

(1.) THIS is a reference by the Additional District; Magistrate, Sawai Madhopur, and raises a question relating to the proper interpretation of proviso to Sub-section (7)of section 251-A,. Criminal P. C.

(2.) THE facts leading to the reference may be, shortly stated as follows:

(3.) THE accused Kawal Jat, resident of Maimpur, is being tried for offences under sections 215 and 411, Indian Penal Code in the Court of Munsif-Magistrate, hindaun. Charges were framed against, him on 28th of January, 1960 and the accused-pleaded not guilty. Prosecution evidence was recorded on 7th and 8th march and only one witness. Sub-Inspector Police Abdul Hamid Khan remained to be examined arid the case was fixed for recording his evidence on 30th March, 1960. The Sub-Inspector Police failed to attend the Court on 30th March to give evidence. On that day, the accused having engaged a counsel, put in an application praying for de novo trial on the ground that as he was not supplied the necessary documents under section 173, Criminal P. C. the trial against him was bad. The Munsif Magistrate observing that the necessary documents had been supplied to the accused on 12th January, 1960, and that there was nothing irregular in the trial, rejected his application. On that very day the accused submitted another application praying for the re-calling of all the prosecution witnesses for further cross examination under section 251-A Sub-section (7), Criminal P. C. The ground on which the prayer was based was that at the time of the examination of the prosecution witnesses the accused was not represented by a counsel and, therefore, there was no effective cross examination and that it was necessary in the interest of justice to afford him an opportunity of cross examining the prosecution witnesses. The application was opposed by the Prosecuting Sub-Inspector and the counsel for the complainant. The Magistrate by his order dated 22nd June, 1960, partially allowed the application and directed the recall of the four witnesses, complainant Motisingh, Ghamandi, Natholi and Mool-singh for further cross examination under Section 251a Sub-section (7) proviso. The accused was, however, directed to bear the expenses to be incurred in summoning the witnesses for further cross examination. Motisingh the complainant filed a revision application against this order of the munsif-Magistrate which was heard by the Additional District Magistrate, Sawai madhopur. The Additional District Magistrate considered the order of the magistrate erroneous in law and has made the present reference with the recommendation that the order should be set aside. Dealing with proviso to subsection (7) of section 251-A relied upon by the trial Magistrate, the Additional district Magistrate has expressed the view that it should be construed to empower a Magistrate to recall only those witnesses for cross examination whose cross examination has been deferred until the examination of some other witness or witnesses and that the trial Magistrate cannot order the recall of those witnesses who had been cross-examined earlier and whose cross examination has not been deferred. In adopting this interpretation of the proviso in question, he has relied upon two main considerations: