EMPEROR Vs. LAKSHMAN RAMSHET ALWE

JUDGEMENT

(1.) The applicants were convicted by the First Class Magistrate, Mai van, of offences under Secs.392 and 341, Indian Penal Code, and sentenced to various terms of imprisonment and fines. From their convictions and sentences they preferred an appeal to the Sessions Judge, Ratnagiri. One of the grounds they urged against their convictions was that when the charges were framed by the Magistrate the applicants were not given a proper opportunity to cross-examine the two prosecution witnesses who were examined in the case. It appears that the case was tried before the learned Magistrate as a warrant case. When the charge was framed on August 4, 1928, the pleader of the applicants was absent from the Court as he was engaged in another Court. The Magistrate required the applicants to state forthwith whether they wished to cross-examines either of the two witnesses for the prosecution whose evidence had been taken. The applicants gave a written application to the Magistrate asking him to adjourn the hearing as their pleader was under the impression that the learned Magistrate would not proceed with the hearing of the case forthwith after the charge had been framed, but would adjourn the hearing to a subsequent date when the prosecution witnesses would be cross-examined. The Magistrate refused the application on the ground that it was his usual practice in warrant cases to proceed forthwith on the charge being framed with the cross-examination by the accused of the prosecution witnesses and that the applicants pleader was well aware of that practice.

(2.) Section 256 of the Criminal Procedure Code provides that after a charge is framed and 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, whether he wishes to cross-examine the prosecution witnesses whose evidence has open taken. It is permissible to a Magistrate to put the question forthwith on the framing of the charge and taking of the accused's plea thereto but if he follows that procedure he has to record his reasons in writing for doing so and those reasons must appear to be cogent and adequate. The reason given by the learned Magistrate for resorting to this procedure is simply that it is his usual practice and the accused's pleader should have foreseen that the cross-examination of the prosecution witnesses would be proceeded with on the day the charge was framed. That, in our opinion, is not a sufficiently cogent or adequate reason for adopting a procedure in this case which under the terms of s. 56 is regarded as an exception to the general rule which is to be followed unless there are special reasons in the case to be set out by the Magistrate in writing, which would justify him in making a departure from the usual procedure.

(3.) The learned Sessions Judge, Mr. Patkar, was of opinion that the procedure indicated in Section 256 of the Criminal Procedure Code had not been followed by the Magistrate. He states that according to the wording of that section the stage for the application of that section was not reached on August 4, 1928, when the Magistrate called upon the accused to cross-examine the wit" nesses. Such interpretation of the section omits to take into consideration the proviso to the section which enables a Magistrate for reasons to be recorded by him in writing to follow the procedure which the Magistrate in this case did but for an inadequate reason. The learned Sessions Judge remanded the case to the trial Court with a direction that the applicant should be allowed to cross-examine the two prosecution witnesses and that LAKBBMAS the Magistrate should record the further evidence and certify it to the Sessions Court.