MOOSA HAJI ABDUL SHAKOOR Vs. EMPEROR

JUDGEMENT

(1.) In this case we granted a Rule upon the Chief Presidency Magistrate to show cause why an order of the Additional Presidency Magistrate refusing the prayer of the accused to be permitted through his counsel to cross-examine certain prosecution witnesses then present in Court before cross-examination of the complainant should not be set aside.

(2.) The petitioner is charged with an offence punishable under Section 406, I.P.C. The stage which had been reached when the incidents which are the subject-matter of this application occurred was that the prosecution witnesses had been examined in chief and charges had been framed. It appears that the learned Magistrate on 27 September directed the petitioner's pleader to give to the prosecution pleader the names of the prosecution witnesses who had already been examined in chief and whose attendance he required for cross-examination on 31 October. The petitioner's pleader gave the names of 11 out of 14 prosecution witnesses, but the complainant was one of the three witnesses whose name was given. On 31 October some of the witnesses whose names had been given by the defence pleader were present in Court as was also the complainant. The Magistrate on that occasion, for reasons which he has given, was not disposed to permit the witnesses to be cross-examined in the order in which the accused desired. On the contrary, he insisted on the cross-examination of the complainant being taken first. The learned Counsel appearing for the petitioner was willing to cross- examine the complainant on that date provided he was allowed to cross-examine the other witnesses then present before cross-examining the complainant. This proposed arrangement however was not allowed by the Magistrate. The learned Counsel stated that he had good reasons for wishing to postpone the cross-examination of the complainant until the other witnesses had been cross-examined but that if he informed the Court what those reasons were he would prejudice his client's case. Learned counsel appearing for the petitioner maintains that the defence has an absolute right to insist that the prosecution witnesses in a warrant case should be cross-examined in the order which the defence counsel desires. The learned advocate who appears for the Crown has directed our attention to Section 135, Evidence Act, which states: The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law by the discretion of the Court.

(3.) He has further pointed out that Section 256, Criminal P.C, which deals with the procedure to be followed by the defence in a warrant case contains no provisions as to the order in which the prosecution witnesses are to be cross-examined and does not confer any such right upon the defence as is claimed by Mr. Basu. Mr. Basu states that he is able to say from his own experience and from information given him by counsel of extensive experience in the Presidency Magistrates Courts that it is the practice of the Court always to permit the defence to cross-examine the prosecution witnesses in the order it wishes. We do not feel called upon to decide whether in fact there is a practice having the force of law by which the discretion of the Court which is prima facie conferred by Section 135, is controlled in the Presidency Magistrates's Courts or in the Courts of Magistrates generally. It is sufficient for the purpose of this case if we deal with the application on its merits.