1. The applicants were convicted by the First Class Magistrate, Mai van, of offences under Sections 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.
4. The learned Government Pleader has contended that the order made by the Sessions Judge is in accordance with the provisions of Section 428 of the Criminal Procedure Code which empowers an appellate Court in cases where it thinks additional evidence to be necessary on recording its reason for the same, either to take such evidence itself or to direct that it should be taken by a Magistrate. In our opinion the case would not fall under the provisions of this section as the reason given by the learned Sessions Judge for remanding the case is that an illegality was committed in not observing the provisions of Section 256, and not that it was desirable for any other reason that further evidence in the case should be recorded. The learned Sessions Judge allowed the convictions and sentences to stand when he made his order remanding the case to the trial Court.
5. In compliance with the Sessions Judge's order the two witnesses were cross-examined before the Magistrate on behalf of the applicants and the additional evidence so taken was certified by him to the Sessions Court. The matter having come again before the Sessions Court on November 20, 1928, Mr. Patkardhan, who had succeeded Mr. Patkar as Sessions Judge, purported to review the order of his predecessor in office. He further remanded the case to the Magistrate directing him to write a judgment on the further evidence he had recorded. The learned Government Pleader has argued that Mr. Patwardhan made the order under the provisions of Section 423(1)(d) whereby the appellate Court is inter alia empowered to make any amendment or any consequential or incidental order that may be just or proper. We are unable to agree with the learned Government Pleader that the order of Mr. Patwardhan would fall within Section 423. We are of opinion that Mr. Patwardhan had no power to review the order of his predecessor in office and in view of the opinion he held the proper course for him to have adopted was to make a reference to this Court. On such reference this Court could have passed such order as it thought to be necessary or proper. Under Mr. Patwardhan's order too the convictions and sentences of the applicants are not set aside and the appeal is kept pending. The applicants have applied to us in revision to have their convictions and sentences quashed and a de now trial ordered before another Magistrate.
6. The provisions of Section 256 appear to us to be peremptory. Where the accused say that they wish to cross-examine the prosecution witnesses at that stage, the witnesses named by them must be recalled for that purpose. In Re Sobhanadri I.L.R(1915) . Mad. 503 . Kumara-swami Sastriyar J. held that a refusal by the Magistrate to allow the accused to recall and cross-examine the prosecution witnesses is illegal and it is for the prosecution to show that the accused are not prejudiced thereby. In setting aside the convictions and sentences the learned Judge ordered a re-trial and expressed the opinion that the same Magistrate should not re-try the case.
7. In In re Rangasami Padayaohi (1915) 16 Cr. L.R. 786 the same learned Judge held that where the charges framed are complicated and the accused are ignorant persons, a reasonable time should be given to the accused to get proper legal advice and assistance before they are called upon to cross-examine the prosecution witnesses. He further held that to ask such an accused person immediately after the charge was framed to cross-examine the prosecution witnesses would not be giving him a reasonable opportunity for the purpose.
8. As an illegality in the proceedings has been committed it is open to us to adopt one of two courses. We may either direct that the learned Magistrate should proceed with the trial from the point the illegality occurred or we may order a re-trial. It has been urged before us by the Government Pleader that the Sessions Judge, Mr. Patkar, was of opinion that the Magistrate is not prejudiced against the applicants and they need not entertain any apprehension that they would not get a fair trial. He has also contended that a good deal of evidence before him has already been gone into and it would be a waste of public time to have a de novo trial. It appears that after the illegality occurred the prosecution examined six additional witnesses and the defence ten witnesses. There would not be much saving of public time as all these witnesses examined after the illegality occurred will have to be examined de novo. In these circumstances we are of opinion that there should be a re-trial. Owing to the unfortunate errors in procedure which have occurred in this case it would be desirable, in our opinion, to have the re-trial before another Magistrate.
9. We set aside the convictions and sentences of the accused and order that they be re-tried by the District Magistrate or any other Magistrate whom he may appoint other than the Magistrate who originally tried the case. The fines if paid must be refunded.
10. In this case the accused were convicted under Sections 392 and 341 of the Indian Penal Code. On appeal the learned acting Sessions Judge, Mr. Patkar, was of opinion that there was an illegality committed by the Magistrate in contravening the provisions of Section 256 of the Criminal Procedure Code. He, therefore, remanded the case for allowing the accused an opportunity of cross-examining witnesses, Exhibits 1 and 2, and for recording the evidence and certifying it to the Sessions Court.
11. On August 4, 1928, a charge was framed by the Magistrate and on framing the charge the Magistrate called upon the accused's pleader forthwith to cross-examine the witnesses, Exhibits 1 and 2, who were examined before the framing of the charge. The pleader on behalf of the accused was absent as he was engaged in another ease, and an application was made for adjournment of the case, but it was refused on the ground that the pleader was engaged some time previously and had ample time to take instructions for his client and that it was the practice of the Magistrate to call upon the accused to examine the prosecution witnesses forthwith. It appears that at the next hearing when the case came on for hearing the accused's pleader again put in an application requesting the Court to allow him to cross-examine the two witnesses examined for the prosecution. That application was also rejected by the Court.
12. Under Section 256 of the Criminal Procedure Code after the charge is framed, and if 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 any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. The general rule laid down by Article 256 is to ask the accused to state whether he wishes to cross-examine any of the witnesses on behalf of the prosecution at commencement of the next hearing; and in exceptional cases forthwith if the Magistrate for reasons to be so recorded in writing thinks fit. But it appears that the learned Magistrate has made it a rule of his Court to ask the accused in every case after the charge is framed to state forthwith whether he wishes to cross-examine any of the witnesses examined on behalf of the prosecution. think there must be special reasons which must be recorded in writing by the Magistrate to enable him to call upon the accused forthwith to state whether he wishes to cross-examine any of the prosecution witnesses. The learned acting Sessions Judge was of opinion that the stage for the application of Section 256 had not been reached on August 4. 1928, when the Magistrate called upon the accused's pleader to cross-examine the witnesses. It is permissible for a Magistrate even on the date when the charge is framed to call upon the accused to state whether he wishes to cross examine any of the witnesses examined for the prosecution but he must record in writing his reasons for so doing, and if there are valid reasons the stage for the application of Section 256 would even be reached on the day the charge is framed. I think in the present case the learned Magistrate ought to have at least allowed the application made on the next day of the hearing by the accused's pleader to allow him to cross-examine the two witnesses examined on behalf of the prosecution. I think, therefore, that there was contravention of the provisions of Section 256 in this case. In Queen-Emp. v. Nasarvanji (1900) 2 Bom. L.R. 542 the conviction and sentence were set aside and the Magistrate was directed to complete the trial according to law on the ground of failure to comply with the terms of Section 256 of the Criminal Procedure Code. It was held in Emperor v. Umaji Krishnaji (1925) 28 Bom. L.R. 95 that in a summary trial the omission to follow the procedure laid down by Section 256 of the Criminal Procedure Code is not an illegality vitiating the trial. It would depend on the facts of each case whether the contravention of Section 256 of the Criminal Procedure Code amounts to a mere irregularity of procedure or to an illegality vitiating the trial. I agree with the acting Sessions Judge that in this case the failure to comply with the provisions of Section 256 prejudiced the accused in his defence and amounted to an illegality. The learned acting Sessions Judge had two courses open to him; either to set aside the conviction and sentence and order the Magistrate to commence from the point where the illegality occurred or to order a de novo trial. The learned acting Sessions Judge, however, directed the Magistrate to record the cross-examination of the two witnesses and to forward the record to him and he kept the appeal pending for decision on his file. There was, however, a change in the personnel of the Sessions Judge. Mr. Patwardhan on November 28, 1928, purported to review the order of his predecessor after the receipt of the record containing the cross-examination of witnesses Exs. 1 and 2. He was of opinion that Section 428 of the Criminal Procedure Code had no application to the facts of the case inasmuch as it provided additional evidence to be taken which the appeal Court could do even itself. In the present case the learned acting Sessions Judge did not think that any additional evidence was necessary for the decision of the appeal, but he was of opinion that an illegality was committed by the Magistrate in not allowing the accused or his pleader an opportunity to cross examine the witnesses examined on behalf of the prosecution in accordance with the terms of Section 256 of the Criminal Procedure Code. Mr. Patwardhan, however, considered that the proper course was to send the papers to the Magistrate to record a judgment again after taking the evidence of the witnesses, who were cross-examined, into consideration. If the Magistrate had to bring an independent mind to bear on the fresh evidence which was taken by him in cross-examination, it would not have been possible for him to write a judgment of acquittal or to pass a lesser or higher sentence on the facts disclosed in the cross-examination of the witnesses, unless the conviction and sentence had been set aside by the appellate Court. The procedure adopted by the learned Sessions Judge though permissible under the Civil Procedure Code is not warranted by any of the provisions of the Criminal Procedure Code. We think, therefore, that the proper course in this case for Mr. Patwardhan was to make a reference to this Court under Section 438 of the Criminal Procedure Code invoking the revisional powers of this Court to correct the error which he thought was committed by his predecessor. The order of Mr. Patwardhan cannot be justified under Section 423(1)(d) which enables the appellate Court to make any amendment or any consequential or incidental order that may be just or proper after the decision of the appeal. It is clear that in the present case there was a contravention of the provisions of Section 256 of the Criminal Procedure Code. Two courses are open to this Court: either to set aside the conviction and sentence and order the Magistrate to commence the procedings from the point where the illegality occurred, or to order a de novo trial. The Magistrate in the present case has taken the whole evidence into consideration and expressed his opinion on the evidence, and I agree that it would be fair to the accused in the circumstances of the present case to order a de novo trial. I agree, therefore, with the order just proposed by my learned brother.