Lakshmi Narain, J.C.
1. The two accused petitioners in the present case were charged by Shri B.B. Dutta, Magistrate 1st Classes Udaipur under Sections 448/380, I.P.C. on 11.5.51 on a charge sheet submitted by the Police. They pleaded not guilty to the charge and wished to further cross-examine the complainant and other prosecution witnesses in the case. The Magistrate adjourned the case for further hearing on 26.5.51 and ordered the prosecuting Sub-Inspector to produce the above P.Ws. for the purpose.
2. On that date, only the complainant and one P.W. was present. The accused persons objected to cross-examine them in part. The prosecuting Sub-Inspector also; applied for permission to produce the remaining P.Ws. on the next date of hearing. The case was adjourned to 15.6.51. The same process happened on the next 2/3 hearings. On 24.7.51 the complainant with 4 P.Ws. was present. The prosecution promised to produce the remaining 4 P.Ws. on a subsequent hearing. The accused petitioned that they would be prejudiced if only 4 cut of 9 P.Ws. were cross-examined on that date and further prayed that all the prosecution witnesses might be directed to attend on one date for re-cross-examination. This followed by an order of the trial Magistrate which runs as follows:
It is not possible to produce all the witnesses in a day. The prosecution has filed a petition to produce the remaining witnesses for morrow. The defence party has refused to cross-examine the witnesses when the complainant was in the witness-box. Adjourn the case. Let the defence party pay Rs. 20/-(twenty) as adjournment cost. Inform Pleader.
3. It is against the above order that the 2 accused made this motion in the Court of Shri Umadas Gupta Sessions Judge who has referred the case to this Court under Section 438, Cr.P.C. with a recommendation that the order of costs passed by the Magistrate is bad in law. The learned Sessions Judge has also recommended that the Magistrate should be directed to order all the prosecution witnesses to attend on the same date for cross-examination.
4. Although reasonable opportunity for cross-examination of all the prosecution witnesses wanted for the purpose on the same day should be afforded to the accused, there is no such law which gives right to the accused to refuse to cross-examine the P.Ws. present when others could not be produced by the prosecution for some reason or the other. There may be circumstances when attendance of all the witnesses cannot be procured on a definite date. Of course, each case is to be considered on its own merits. The learned Magistrate in the present case has acted quite reasonably in adjourning the case at the request of the accused on the ground that cut of the 9 P. Ws. in the case required by them for re-cross-examination, only the complainant with one or two witnesses were present. This was done 3/4 times but in spite of that the prosecution did not or could not produce all the P. Ws. It would not be unreasonable to draw an inference from such a conduct of the prosecution that it deliberately avoided to produce them all at a time from fear of discrepancies which might occur during the course of re-cross-examination.
5. In case the prosecution is unable to produce or avoids to produce all the P. Ws. required for cross-examination the Magistrate can use other methods provided by law to procure their attendance and under the circumstances of the present case, he should have done so.
6. The order of the learned Magistrate burdening the accused with costs for adjournment is quite uncalled for under the present circumstances of the case as the fault primarily did net lay with them. It laid with the prosecution. It would amount to putting obstacles in the way of the accused to defend them properly. It is thus set aside.
7. It is not correct to say that in no case costs for adjournment can be awarded against an accused person. It can be done in exceptional circumstances when the accused is clearly at fault, is not entitled to ask for it and the complainant is put to loss and trouble on that account.
8. To the above extent this reference is accepted. The case will go to the trial Court, which will proceed to determine it according to law.