Ram Labhaya, J.
1. This is a composite petition under Sections 439 and 526, Criminal P. C. The relief claimed is that two orders dated 8-4-1953 and 13-5-1953 passed by the trial Magistrate be quashed and that the case be transferred from his Court to the Court of some other competent Magistrate for disposal according to law. The petitioner was the complainant in the trial Court. He instituted a complaint under Section 406 against Sohanlal Seraogi, the accused Opposite Party before us.
2. The complaint was lodged on 20-11-1950. The accused was summoned and appeared on 20-12-1950. On 5-5-1952-3 prosecution witnesses were examined after no less than 4 adjournments. The case was adjourned again 3 times and on 7th August the complainant and one more prosecution witness were examined. It was on this date that the charge was framed. The accused pleaded not guilty. The case was fixed for cross-examination of prosecution witnesses on 2-9-1952.
On 6th October complainant was present. But his witnesses were not present. He prayed for time and the case was adjourned to 3-11-1952. On this date adjournment was prayed for on behalf of the accused. This was allowed. The case was adjourned to 24-11-1952, on which date the complainant again prayed for an adjournment, as Matilal one of his witnesses was ill. The case was adjourned to 15th December. On this date 2 prosecution witnesses were cross-examined and the case was adjourned to 22-1-1953 for cross-examination of the remaining witnesses. On 22nd January the complainant again asked for an adjournment as his witnesses from Gauhati had not turned up. The case was adjourned to 18-2-1953. On 18th February the complainant again asked for time as the mother of one of his witnesses had died. The case was adjourned to 8-4-1953. On this date as well as on the 3 previous occasions the learned Magistrate was mechanically repeating the direction that no more time shall be allowed. On 8th April the complainant himself was absent. Someone on his behalf moved the Court for adjournment as a prosecution witness who had gone to his native place had not come back.
The petition was rejected. But the case was adjourned on the request of the counsel for the accused to 13-5-1953 for statement of the accused and his defence. On 13-5-1953 the accused appeared. The complainant was present but he did not produce his witnesses for cross-examination. The learned Magistrate ordered that their depositions be expunged. He recorded the statement of the accused who declined to produce any defence. At this stage according to the order dated 13-5-1953 another petition was put in on behalf of the complainant for a further adjournment. There was also the prayer that a warrant be issued for P. W. 4 who was a very material witness. The learned Magistrate rejected the petition in view of the order which he had already passed by which the depositions of 4 prosecution witnesses had been ordered to be expunged. The case was fixed for arguments and orders on 25-5-1953.
Before this date the complainant moved the Additional District Magistrate under Section 528 read with Sections 435/436, Criminal P. C. He called for a report from the trial Magistrate and on receipt of it, rejected the petition. The complainant then moved the trial Magistrate for time to apply to this Court for transfer of the case under Section 526 to some other Court. Time was allowed to him and as a result he has put in the petition now before us.
3. The learned Counsel for the petitioner has contended that the order of 13-5-1953 expunging the depositions of 4 prosecution witnesses from the record is opposed to the mandatory provisions of the Code. The order being obviously illegal is unsustainable. He has therefore argued for its reversal and has stated that if this order is reversed and the learned Magistrate directed to proceed according to law, he would not Insist on the transfer of the case from his Court to the Court of any other Magistrate, to avoid delay, though there would be ample legal justification for a transfer of the case also.
4. His contention in regard to the illegality of the order of 13th May is based on the provisions contained in Section 256, Criminal P. C. He points out that Section 256 casts an obligation on the Magistrate to ask the accused to state whether he wishes to cross-examine any and if so which of the witnesses for the prosecution whose evidence has been taken. If he expresses his wish to cross-examine any witnesses, those witnesses have to be recalled and they can be discharged after cross-examination and re-examination, if any. It is pointed out that the accused was not asked, nor did he state that he wanted to cross-examine any witnesses and it is urged that even if it is assumed that the accused wanted to cross-examine all witnesses, they had to be recalled and resummoned in the circumstances of this case. The obligation under Section 256 was entirely on the Court and the failure of the complainant to produce the witnesses did not absolve the Court from its responsibility.
5. There is no statement of the accused on the record showing that he stated that he wanted, any of the prosecution witnesses to be recalled for cross-examination. Section 256 makes it obligatory on the Court to require the accused 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 any, and if so, which of the witnesses for the prosecution whose evidence has been taken. The fact that the accused has been required to state what he wishes and whatever he actually states, whether on the next hearing or on the same day, should be recorded. No such record exists in this case.
But the absence of this statement may not be a sufficient basis for holding that no enquiry was made from the accused or that he did not state that he wanted to examine the prosecution witnesses. On 7th August when the charge was framed it was stated in the order that 2nd September be fixed for cross-examination. Such an order would be inconceivable if the accused did not want to cross-examine the witnesses. It is possible that this order was passed according to the usual practice obtaining in this province, but even that would imply that the witnesses were needed for cross-examination. After 7th August, the complainant prayed for and got several adjournments for producing these witnesses. This conduct also indicates clearly that the accused wanted the witnesses for cross-examination and the right given to him by Section 256 had not been waived. The witnesses therefore had to be recalled and resummoned if necessary.
6. In these circumstances the question that calls for determination is whether there was any legal obligation on the complainant to produce these witnesses. It may be stated at the outset that there is no specific provision in the chapter on the trial of warrant cases which expressly throws the obligation to produce witnesses for cross-examination after the charge, on the complainant. On the other hand, the scheme of the Code points unmistakably to the conclusion that where the accused desires to cross-examine any of the witnesses on whose statements a charge is framed against him, it will be the duty of the Court to recall and if necessary to resummon them. Under Section 252 when the accused appears the Magistrate has to proceed to hear the complainant, if any, and take all such evidence as may be produced in support of the prosecution. The complainant here can produce any witnesses that may be within his power to produce. The Magistrate is bound to examine them. Sub-section (2) of B. 252 requires the Magistrate to ascertain from the complainant or otherwise the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and to summon to give evidence before himself such of them as he thinks necessary.
It would appear that in warrant cases the obligation to produce the entire evidence that may go to support a charge is not on the complainant alone; he can produce such evidence as he can. The Magistrate then is under an obligation to ascertain not only from the complainant but from other sources also the names of any persons who may be in a position to give relevant evidence. Having obtained this information he can exercise his discretion and summon such wit-nesses as he thinks necessary. When acting under this sub-section it is open to the Magistrate to take such evidence as he considers necessary in order to discover whether an offence has been committed or not, even if the complainant states that he does not wish to proceed with the complaint, vide - 'Nagaswami Naidu v. Ramaswamy Nalcken' 1937 Mad WN 727 (A). If after taking all evidence required to be taken by Section 252 no case is made out against the accused, the Magistrate has to discharge him under Section 253. If on a consideration of such evidence the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence, a charge has to be framed under Section 254. The charge-then has to be read and explained to the accused and he has to be asked whether he is guilty or has any defence to make. If the accused pleads guilty, he may be convicted on that plea. Where the accused refuses to plead, or does not plead, or claims to be tried, he is to 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 any, & if so, which of the witnesses for the prosecution whose evidence has been taken. This is a mandatory requirement of Section 256. The accused must be furnished with an opportunity to state whether he wishes to cross-examine any, and if so, which of the witnesses for the prosecution.
This opportunity has normally to be given on an adjourned hearing. The case has to be adjourned even though it may be for one day to enable the accused to state whether he wishes to cross-examine any of the prosecution witnesses. He may be asked forthwith to make the statement if the Magistrate for reasons to be recorded in writing considers it necessary in a particular case. If he wishes to cross-examine any of the witnesses, they have to be recalled. This requirement of the section is also mandatory. It is In the following terms:
If he says he does so wish, the witnesses named by him shall be so re-called and, after cross-examination and re-examination (if any), they shall be discharged.
The witnesses therefore have to be recalled.
I have already come to the conclusion that the accused in this case did want to cross-examine the witnesses. They were not bound down or ordered to attend on any date after the charge. No summons had been issued to them. They were under no obligation to attend. They had to be summoned if the complainant could not or did not produce them. It cannot be said with any show of reason that the obligation to recall prosecution witnesses for cross-examination when the accused wishes to cross-examine them, applies only to the witnesses who are present in Court. That way the accused may be deprived of the right of cross-examination where the prosecution has not been able to examine all the witnesses on one day, with the result that the case had to be adjourned from time to time and the witnesses are not present in Court when the accused states that he wishes to cross-examine some or all of them. If therefore they are not in attendance when the accused makes the statement, they will have to be resummoned with a view to making them available for cross-examination and re-examination. The resummoning becomes necessary in order that the accused may exercise his privilege under Section 256. This would be unavoidable.
But there is no obligation on the complainant to summon them under Section 256. It has been argued that similarly no such obligation has been imposed on the Court in express terms. This however may be regarded as necessarily implied in the language of the section. For, if summoning becomes necessary, the obligation can only be discharged by the Court. The complainant has got no authority or power to produce the witnesses against their will. He cannot compel their attendance. Summoning is possible only by a process of the Court. If therefore resummoning is implied. It would follow that the obligation to resummon the witnesses is on the Court.
The provisions contained in Section 257 also support this view. This section requires that if the accused, after he has entered upon his defence applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice, provided that, when the accused has cross-examined or had the opportunity of cross-examining any 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. It is clear that the accused may ask the Court to compel the attendance of witnesses after the charge is framed for purposes of cross-examination and a witness already crossexamined may also be summoned if it is necessary for the purposes of justice, though the Court is not bound to do so. The section no doubt confers a privilege on the accused but the obligation for summoning the witnesses is definitely on the Court.
If the Legislature had thought fit that the obligation ought to be on the complainant in cases initiated by a complainant, it would have provided to that effect expressly or by necessary implication. But that course could not have been adopted seeing that the parties have no power to compel the attendance of witnesses who may be unwilling to attend. Section 259 deals with the effect of the absence of the complainant. It provides that when proceedings have been instituted upon complaint and upon any day fixed for the hearing of the case the complainant is absent, and the offence may be lawfully compounded, or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused. Under this section an accused may be discharged if the complainant is absent, provided the complaint is with respect to an offence which is either compoundable or non-cognizable.
Where the offence is not compoundable and is a cognizable one, the accused cannot be discharged and even though the complainant may be absent the case has to proceed in his absence. There is no provision for acquitting the accused in the absence of the complainant after a charge is framed in a warrant case. The only provision for dealing with the absence of the complainant is Section 259 which authorises a discharge under certain circumstances. This can happen before the charge is framed. The Court therefore has no power to acquit the accused on account of the absence of the complainant where a charge has been framed.
What the Court cannot do directly, it may not do also indirectly. Dismissing a complaint and acquitting an accused after excluding the evidence of witnesses from consideration who have not been cross-examined as the complainant does not appear and is not producing the witnesses, is achieving the same result in a different way. It is the default of the complainant in appearance and in producing witnesses which would be the basis for exclusion of the testimony of witnesses from consideration. The result is that there is no decision on the merits. Practically the case is disposed of on the ground that the complainant is absent and has produced no testimony which may form the basis of the conviction. The finding that no offence has been committed cannot be given. This would be punishing the complainant for default even though the evidence before the Court may disclose a 'prima facie' case. This is not permitted by Section 259. The necessary implication of that section is that the absence of a complainant will not affect the proceedings where a charge has been framed, in a warrant case.
7. Acquittal of the accused for non-appearance of the complainant is illegal. This proposition appears to be concluded by authority. There does not appear to be any divergence of judicial opinion on it. 'Chiranjilal v. Kamswarup' AIR 1943 All 9 (B); - 'Emperor v. Nazo' AIR 1943 Sind 148 (C); - 'Varadarajulu Chetty v. Janakirama Chetty' AIR 1942 Mad 552(1) (D); - 'Nutbehari Sarkar v. Baroda Prosad' AIR 1933 Cal 358(1) (E) and - 'Kankeswar v. Asatu Kalita' AIR 1950 Assam 211 (P), are authorities which support this view. In - 'Nabi Bukhsh v. Emperor' AIR 1924 Lah 627 (G), it was further held that after the charge the complainant's position is reduced to that of a witness. He cannot even be ordered to pay costs of the adjournment.
8. Necessary consequence of the provisions contained in Section 259 is that if the complainant is absent and has failed to produce his witnesses for cross-examination, the Court shall summon those witnesses. This obligation is unavoidable. For, it is not possible to acquit the accused either under Section 259 or even under Section 258 which requires a finding of not guilty on the merits.
9. It follows from the above discussion that where after the charge has been framed, complainant fails to appear and also fails to produce his witnesses for cross-examination, the Court is under an obligation to summon such witnesses for cross-examination whom the accused wishes to cross-examine. In - 'Saghiruddin v. Mst. Munni' AIR 1949 All 428 (H), a Division Bench of the Allahabad High Court held that a duty was cast on the Magistrate to recall the prosecution witnesses for cross-examination as required by Section 256. The duty of procuring their attendance cannot be laid on the shoulders of the complainant. Nor may he be penalized for the fault of the Magistrate in neither summoning nor binding them down for appearance.
In this case the complaint was under Sections 494 and 498, I. P. C. The charge was framed against the accused. After the charge when the case was called on 17-10-1947 the complainant and his witnesses were absent and at the request of his counsel case was adjourned to 5th November. On this date also complainant was absent and the application for adjournment on the ground of his illness was refused. The witnesses of the complainant were also not present. In these circumstances the evidence of the prosecution witnesses who had been examined before the charge was excluded from the consideration and the accused acquitted. The acquittal was set aside with the direction that the witnesses whom the accused wished to cross-examine should be summoned. The ratio 'decidendi' is that the obligation is on the Court to resummon witnesses for cross-examination under Section 256 if they are not present in the court precincts. This case fully supports the view of the law that I take.
10. In - 'Sadek Mahammad v. Jyotish Chandra' AIR 1948 Cal 83 (I), relied on by Mr. Ghose it was held that where after the charge (under Section 504, I. p. C.) the complainant and his witnesses were absent on the day fixed for their cross-examination it was not proper to discharge the accused. The proper order to pass is - 'As the prosecution witnesses are absent and cannot foe cross-examined, their evidence in examination-in-chief should be expunged and as there is no evidence in the case the accused is acquitted,' The question whether the Court was under any statutory obligation to summon witnesses in such circumstances was not raised and decided. This case is therefore not very helpful as a precedent.
11. Mr. Ghose has argued with considerable force that the complainant assumed the responsibility of producing witnesses. He got several adjournments for the purpose. Having undertaken the responsibility to produce the witnesses for cross-examination he cannot now turn round and say that the obligation still was on the Court to summon the witnesses. I am afraid this contention receives no support from principle. Once it is granted that the statutory obligation is on the Court, no act or omission on the part of the complainant could absolve the Court from doing its duty. If the Court was led or even misled into believing that the complainant will be able to produce witnesses and allowed him opportunity to do so, it cannot be said with any justification that it has discharged its obligation by merely permitting the complainant to produce witnesses even when it is found that he is unable to do so by reason of negligence or otherwise or has deliberately avoided producing them by reason of collusion with the accused. Such a collusion is conceivable in cases which cannot be lawfully compounded even with the permission of the Court.
It could, not therefore be laid down as a matter of law that if the complainant undertakes to produce his witnesses himself in the Court and thereby prevents the Magistrate from issuing summons against them, he could be held responsible for their absence or punished for his default by the dismissal of the complaint directly on the basis of default or indirectly by exclusion of the evidence of his witnesses from consideration. In - 'AIR 1949 All 428 (H)', there is an observation to the effect that where a complainant undertakes to produce witnesses himself in the Court and thus prevents the Magistrate from issuing summons, it would be right to hold him responsible for their absence. The dictum is apparently 'obiter' and with great respect I find it difficult to subscribe to it for reasons which I have given above. I am of the opinion that notwithstanding such conduct on the part of the complainant the statutory obligation on the Court remains and on the failure of the complainant to produce witnesses, the Court will have no option but to summon them by suitable processes.
12. The learned Counsel for the petitioner has stated that it is by reason of the order of the Court dated 13-5-1953 that the complainant felt driven to the necessity of applying for the transfer of the case. If that order is quashed, he would not press for transfer of the case in order to avoid delay in its disposal. Mr. Ghose has urged that the complainant's application to the trial Magistrate for time to move the High Court for transfer was merely a device to obtain from this Court a reversal of the order dated 13-5-1953. For, if the orders stood even the transfer of the case to another Magistrate would not have been of much avail to him. There may be something in this suggestion, but considering that the petition to this Court is not only directed against the order of 13-5-1953, but there is also a prayer for the transfer if the case and the relief is not unconditionally abandoned, it cannot be said that the complainant has committed a breach of the undertaking that he gave to the Court. Now that the case is before this Court and it is discovered that the order of 13-5-1953, is wholly indefensible, it is appropriate that it should be quashed in order that speedy justice may be done between the parties.
13. It would be desirable to point out that the ideal procedure for the trial of warrant cases as held in - 'Crown v. Nirpatsingh' 1939 Nag LJ 201 (J), would be to examine all prosecution witnesses on one day or perhaps on two consecutive days, so that all would be present and ready to be cross-examined if the accused exercised his right under Section 256. In some cases it may not be possible to get all the prosecution witnesses on one day or even on two consecutive days. In such cases a serious effort should be made by all concerned to get important witnesses on one day, so that if the testimony discloses a 'prima facie' case, a charge could be framed and those witnesses could be offered for cross-examination next day if the accused desired to cross-examine any, This procedure if adopted, would go a long way to reduce the long duration of trials.
14. For reasons given above, this petition is allowed to the extent that the order dated 13-5-1953 is quashed. It is not necessary to order transfer of the case to the Court of any other Magistrate. The case shall go back to the Court Of the trial Magistrate. He shall proceed to summon such prosecution witnesses as the accused may wish to cross-examine and then dispose of the case according to law.
Sarjoo Prosad, C.J.
15. I agree.