MIHIR LAL ROY Vs. EMPEROR

JUDGEMENT

(1.) IN this case the petitioner, who was accused of an offence under the Excise Act, cited certain defence witnesses who were summoned. On the date fixed for hearing, one of these witnesses did not attend, and the accused informed the Court that the witness was ill and asked for a postponement in order to enable him to produce the witness. The application was refused on the ground that the petitioner had not produced a medical certificate to show that the witness was actually ill. We hold that the Magistrate, having once issued process against the defence witness, was bound to enforce his attendance. If he did not believe the story of the accused that the witness was ill he should have issued a warrant to enforce his attendance. The accused having obtained summons from the Court against this witness was entitled to have his attendance enforced. Had he come to Court and said the witness was not present and given no reason for his absence, the Court would have no ground for refusing an adjournment to enforce the attendance of the witness. We see no reason why the petitioner should be in a worse position because he informed the Court of the fact of the witness being ill.

(2.) WE accordingly set aside the conviction and sentence passed on the petitioner and direct that the case be retried from the point it had reached when the application for adjournment for the production of this witness was refused.