SONU KURMI Vs. EMPEROR

JUDGEMENT

(1.) The petitioners have been convicted of attempted burglary in the town of Gaya. At the time of the occurrence in. respect of which the petitioners have been convicted, they were under trial for another burglary for which they were convicted but were subsequently acquitted in appeal. In the present case the charge was framed on 12 April, when the hearing was adjourned till 5 May for cross-examination of the prosecution witnesses. On 5 May the trying Magistrate was ill and the trial was adjourned till the 25th. The petitioners who had been convicted had by this time been acquitted by the Sessions Court on appeal and had in this case been released on bail.

(2.) On the 25th, when the prosecution witnesses attended Court for cross- examination for the second time, the petitioners prayed for an adjournment on the ground that they were not ready then to cross-examine the witnesses. The Magistrate declined to grant an adjournment, and the pleaders who were appearing on behalf of the petitioners declined to cross-examine the witnesses. The witnesses were accordingly discharged. On the following day a petition was presented praying that the prosecution witnesses might be recalled for cross- examination under Section 257, Criminal P.C. The Magistrate pointed out that an opportunity had already been given for examination of these witnesses after charge and he declined to re-summon them. In appeal before the Sessions Judge the point was taken that cross-examination of the prosecution witnesses had not been permitted; but the learned Sessions Judge pointed out that an opportunity had been given of which the appellants had not availed themselves.

(3.) It is argued before me that when there had been no cross-examination after charge, the learned Magistrate ought to have issued process under Section 257 to recall the witnesses; but it is provided by Section 257 that when the accused had the opportunity to cross-examine a witness after the charge is framed, the attendance of such witness shall not be compelled under this Section unless the Magistrate is satisfied that it is necessary for the purposes of justice. I consider that after the opportunity had been given on the 25 and advantage had not been taken of it, the learned Magistrate was justified in acting under the Proviso in declining to recall these witnesses for cross-examination.