SAGHIR UDDIN Vs. MTMUNNI

JUDGEMENT

(1.) The facts in this application in Revision are very simple. The applicant instituted a complaint under Secs.494 and 498, Indian Penal Code, against the opposite party. The trial Court, after recording his evidence, framed a charge against the opposite party and fixed 17 October 1947 for cross-examination of the prosecution witnesses. When the case was called out on 17 October 1947, the complainant and his witnesses were absent and at the request of his counsel the case was adjourned to 5 November 1947. On that date also the applicant was absent and his counsel again applied for adjournment on the ground of his illness. The trial Court was not satisfied with the plea of illness and did not understand why, even if the applicant was ill, his witnesses could not be present to be cross-examined. It rejected the application, refused to consider the evidence of the prosecution witnesses examined before the charge on the ground that they were not subjected to cross-examination, concluded that there was left no evidence against the opposite party and acquitted them. The complainant challenged this order before the Sessions Judge, who refused to interfere. His order Heard the parties. Rejected did not touch the grounds on which the application was based and is of absolutely no help to us in deciding the question that has been raised by the learned Counsel for the applicant. He has urged that under Section 256, Criminal P.C., it was not the applicant's duty to produce his witnesses for cross-examination, that it was really the Court's duty to summon them and that it could not penalise the applicant when the witnesses were not present. He also alleged that though the applicant was absent, his witnesses were present in the Court on 5 November 1947. He further urged that even if the trial Court did not see its way to adjourn the case, it should have decided it on 5th November 1947 on the basis of the evidence already recorded and; should not have refused to consider it at all.

(2.) The Criminal Procedure Code casts upon the Magistrate trying a warrant case, the duty of ascertaining from the complainant the names of his witnesses and of summoning them: see Section 252. If, after considering the evidence of the witnesses summoned by him and the statement of the accused, he "is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter" he is to frame a charge. He must then ask the accused to plead to it. After recording his plea, he must ask him if he wishes to cross- examine any of the prosecution witnesses whose evidence has been taken. If he answers in the affirmative, Section 256, Criminal P, C, requires that the witnesses flamed by him shall be re-called, and, after cross- examination and re-examination (if any) they shall be discharged.

(3.) Now the principal question is whose duty; it is to re-call the prosecution witnesses for cross-examination as required under Section 256. The section itself does not expressly lay the duty on either the complainant or the Magistrate, but the general scheme of trial of warrant cases suggests that the duty is on the Magistrate. It is he who is required by Section 252 to ascertain the names of the prosecution witnesses and to summon them. It is for him to ascertain from the accused if he wishes to cross-examine any of the prosecution witnesses under Section 256, and when this duty is considered together with the requirement that on the accused's answering in the affirmative "the witnesses named by him shall be re-called," it follows that it is for the Magistrate to re-call them and not for the complainant. The witnesses, after cross-examination and re-examination, have to be discharged. This duty of discharging can be performed only by the Magistrate. If one has regard to the context in which the words "shall be recalled" and "shall be discharged" are used, when the duty of discharging is upon she Magistrate, it follows that the duty of recalling also is upon him. The other acts to be : done under Section 256 are also to be done by him.