EMPEROR Vs. NATHU KASTURCHAND MARWADI

JUDGEMENT

(1.) The accused was charged before the First Class Magistrate in the Nasik Sub- Division with having committed an offence under Secs.352, 504 and 506 of the Indian Penal Code. The trial commenced on April 16, 1924, when one witness for the prosecution was examined. On April 25, two more witnesses for the prosecution were examined and then the accused was questioned generally. To the question whether he wished to further cross-examine the prosecution witnesses, he said "Yes". He was also asked if he had any witnesses, and he gave the names of certain persons he wished to call as witnesses for the defence. On the same day a charge was framed under the three sections abovementioned. On May 2, the prosecution witnesses who had previously been examined were cross- examined. The accused was not questioned further and he entered on his defence. One witness for the defence was examined and cross-examined. On May 20, 1924, another witness for the defence was examined, and on May 21, 1924, judgment was delivered convicting the accused and sentencing him to pay a fine of Rs. 50, or to suffer two weeks rigorous imprisonment. He, thereupon, made an application to this Court in revision, and the fourth ground on which he complained of the proceedings in the lower Court was as follows : "That the learned Magistrate has erred in law in not getting an explanation from the accused as to what was deposed against him by the prosecution witnesses in their cross-examination and this omission to examine the accused vitiates the trial and conviction."

(2.) Now the procedure to be followed in warrant cases is prescribed by chapter XXI of the Criminal Procedure Code. Under Section 254, at any previous stage of the case even before the whole of the evidence for the prosecution has been taken, the Magistrate is competent to frame a charge against the accused. Under Section 255 (1), the charge will then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make, and under Section 256 if the accused claims to be tried he shall be required to state at the commencement of the next hearing of the case, or if the Magistrate for reasons to be recorded in writing so thinks fit forthwith, ask the accused whether he wishes to cross-examine any, and if so, which, of the witnesses for the prosecution whose evidence has been taken If he says he does so wish, the witnesses named by him shall be re-called and, after cross-examination and re-examination (if any), they shall be discharged. The evidence of any remaining witnesses for the prosecution shall next be taken, and, after cross-examination and re-examination (if any) they also shall be discharged. The accused shall then be called upon to enter upon his defence and produce his evidence.

(3.) It is, therefore, contemplated by these provisions that the Magistrate can frame a charge although the prosecution case is not complete, and if he does so, and the accused claims to be tried, he is bound to ask the accused whether he wishes to cross-examine any of the prosecution witnesses who have already been called. If the accused states that he wants to cross-examine any of those witnesses, those witnesses must be brought back to the Court so that they may be cross-examined.