1. This is an appeal by the State of Assam against an order of acquittal passed by the learned First Class Special Magistrate of Shillong, acquitting the accused Ramani Mohan Chanda in a case in which he had been charged under Section 161, I.P.C.
2. Mr. Medhi who appears for the State contends that the learned Magistrate committed an error of law which has resulted in an erroneous acquittal. He contends that the evidence of P. W. 7 Abdul Wahab Khan has been wrongly omitted from consideration by the learned Magistrate, having regard to the fact that it was not possible to produce P. W. 7 for cross-examination.
3. It appears that P. W. 7, upon whose evidence alone the case hinges, was examined on 2-12-49. The record shows that on that day his cross-examination was reserved. There is nothing to show that the cross-examination was reserved at the request of the accused. We do not think it would be unreasonable to rely upon our experience namely, that after the law has permitted Magistrates to frame a charge at any stage of the proceedings, some Magistrates at any rate resort to the practice of framing a charge against an accused person after examining-in-chief some witnesses, reserving, to the accused an opportunity to cross-examine the witnesses after charge, without a request by the accused in that behalf. In the absence of anything on the record to show that the learned Magistrate afforded an opportunity to the accused to cross-examine P. W. 7, before he framed a charge, it is plain that Section 33, Evidence Act would have no application. The record also shows that from time to time the case was adjourned to enable P. W. 7 to appear for the purpose of cross-examination. This course would scarcely have been adopted by the Trying Magistrate if he knew that the accused person had been given an opportunity to cross-examine P. W. 7 before the charge. We are satisfied from the circumstances of this case that the accused was in all probability not given an opportunity to cross-examine P. W. 7. In this view, the Learned Magistrate was quite right in omitting from consideration the evidence, of P. W. 7. It is not disputed by Mr. Medhi for the State that if the evidence of P. W. 7 is not taken into consideration, there is no case for the accused to answer.
4. The result is that the appeal is dismissed.
5. I agree.