1. The interesting questions raised in this revision petition are whether the refusal by the prosecution to ask questions in examination-in-chief without allegations of error disentitles the accused from cross-examining the witness, and whether the Magistrate is justified in postponing such cross-examination till after the charge has been framed.
2. The facts of the case are that Satyanarayan Singh has been charge-sheeted of kidnapping Under Section 363, Penal Code a minor girl called Shanta Devi aged thirteen years. The challan is being tried by the Additional Magistrate, Hyderabad. In the List-A of the witnesses attached to the challan the name of Shanta Devi has been included. She has been recovered and put in a rescue house. On 11-5-1954, the girl was in Court, and the Superintendent of the house was asked to bring her the next day 'as she would be examined'. On this date the prosecution petitioned for the summoning of three witnesses. But the Court in the order-sheet of the aforesaid date has held that they would be called afterwards.
On the next date, i.e., 12-5-1954, the prosecution presented an application that they had already asked for summoning of three witnesses who had not been called, a different witness, Shanta Devi, had been called for examination whom the prosecution did not want to examine at this stage, and the witnesses already mentioned in the earlier application be summoned as they were more important and necessary in the case. On the back of the application the Magistrate passed the order that the argument concerning the non-examination of the girl at this stage and calling of the other witnesses first had no force, notwithstanding the right of the prosecution to examine witnesses in the order it considers best there was no justification. in prolonging the case and not examining the P.W. present in the Court and the P.W. can be examined. In the record of the case which we had. called for, there is a paper used for recording depositions of witnesses with the name of the girl, her age given as 19 years and occupation. There is, the further writing 'Deposed on oath', and then, there is a dash with the signature of the Magistrate and the date.
3. From the order-sheet of 12-5-1954, it appears that after the petition was rejected the Court asked the prosecution to begin the examination. But the prosecuting officer stated that he did not want to produce the P.W. at all. Thereafter the Advocate of the accused submitted that the Magistrate must examine her, and wanted to argue the point with authority, and the argument was postponed for the next day. On 13-5-1954, arguments were heard:, and order delivered on 15-5-1954, which the accused seeks to vacate by this revision petition.
4. In this order, the Magistrate has rejected the. argument or the counsel oi the accused that under. Section 252(2), Criminal P. C. the Magistrate must examine the important witness. The ground of the rejection is that the power under the aforesaid sub-section should not be exercised until the prosecution evidence is concluded, and there were -yet important witnesses to be examined on behalf of the prosecution. The Magistrate was of opinion, that the failure of justice by the refraining of the prosecution to examine important witnesses can be-properly remedied by exercise of his discretionary power Under Section 540 by taking the deposition of Shanta Devi when tile case reaches the stage.
We may mention here that this view of law taken by the trying Magistrate cannot be held to be erroneous; for the power Under Section 252(2), Criminal P. C. is not intended for the purposes of callingj witnesses when the prosecution case has not been, concluded. After the closing of the case the Magistrate can exercise the power. Nor die discretion given to the Magistrate Under Section 540 should be exercised in the middle of the prosecution evidence. We, therefore, hold that the Magistrate's rejectioa. of the argument by the accused's counsel on the point is correct,
5. The next ground for disallowing the request to ask questions iu cross-examination, however, does-not appeal to us. It was urged before the Magistrate that to give rise to the right of cross-examination it is not necessary that questions should have been asked in examination-in-chief, and where a witness, who has been intentionally called, is competent the opposite party has in strictness a right to cross-examine him though the party calling himt has declined to ask a single question. The Magistrate - has over-ruled the claim of the counsel for the accused on the ground that the prosecution had not intentionally called the witness. He has further taken the view that in case of mistake before-the examination-in-chief has begun the right of cross-examination does not arise.
There is sufficient authority for the proposition that where a witness has been intentionally called' and sworn by either party the opposite party has a right to cross-examine if the examination-in-chiel: is waived. In - 'Phillips v. Earner' (1795) 170 ER 383 (A), a witness was called by the plaintiff, was asked as to declarations respecting the Bill of Sale. But being able to speak as to declarations at a subsequent period he was rejected. On counsel for the opposition proceeding to cross-examine the witness objection was raised that no question has been asked of the witness and it was ruled that he should be examined.
In - 'Rex v. Brooke' (1819) 171 ER 709 (B), a witness was called and sworn in the case at a prosecution for misdemeanour, and though he produced a document he was not examined. It was held that the delendaut was entitled to cross-examine the witness and he was accordingly cross-examined.
Then in - 'Rex Thomas Beeziey' (1830) 172 ER to78 (C), several witnesses were called, the prosecution closed the case. The presiding Judge, however, thought that the prosecution ought to call some witnesses shown at the back of the indictment in order to give the prisoner's counsel an opportunity to cross-examine them. They were called. But no questions were asked of them. One of them on being cross-examined statedftacts in the prisoner's favour. Efforts were made to ask questions afterwards. The questions were rejected and it was held that if the prosecutor's counsel does not wish to ask question in examination-in-chief he cannot be allowed to lie-by and see what the prisoner's counsel does in cross-examination, and then enter into a fresh examination of the witness.
Finally, in - 'Regina v. Pringle' (1840) 174 ER 287 (D), it was held that a witness called under a mistake of a counsel as to his being able to speak to a transaction, is not liable to cross-examination though sworn if the mistake be discovered before any question is put. It is clear from the aforesaid authorities that except in the case of mistake the right to cross-examine a witness is not dependent on his being questioned by the party who has called him after ho has sworn and therefore when the opposite party wishes to exercise the right there must be a finding clearly given that the witness has been summoned by mistake. Though the Magistrate has rejected the argument of the counsel of the accused on the ground that the right to cross-examine does not arise where there has been error there is no finding by him that in the particular case there has been such mistake.
6. Indeed, having regard to the order-sheet of 11-5-1954, that the girl should be brought the next day 'as she would be examined', the other witnesses would be called afterwards, and having regard to the prosecution's application of 12-5-1954, that the girl would not be examined at this stage of the case and the Magistrate's rejection of the prayer as well as swearing of the girl together with the inclusion of the girl's name in List-A of the witnesses attached to the challan, there can be no doubt that the prosecution intended to produce the witness and the Magistrate was under no mistake of fact in insisting on her deposition being taken on the particular date. It is, therefore, clear that the refusal of the prosecution to ask any question in examination-in-chief and giving up the girl as a witness on its behalf after she was sworn cannot deprive the accused of his right to cross-examine her which has accrued to him soon, after she was sworn m.
7. The next question which arises in the case is whether this right should be allowed to the accused alter the charge has been framed. We find from the record that the Magistrate has allowed the counsel of the accused cross-examination of witnesses 1, 2, 3, 5, 6, 7, 8 and 9 in the case, and it is admitted that the charge in the case has not been trained. Though before the framing of the charge there is no express statutory provision for the cross-examination of the prosecution witnesses, there are authorities that the Magistrate should give the accused an opportunity to cross-examine the prosecution witnesses it he should so desire. We may refer for such observation to the case of - 'Biswas v. The State' : AIR1950Pat550 . This appears to us to be a sound. rule of practice on which the Magistrate had acted himself in the particular case. We do not, therefore, see any reason why as regards the particular girl the Magistrate should have departed from this-practice unless it be that he was under the misapprehension of there being a mistake of fact about the girl being put into the witness-box. We do no1- find any such mistake. For, after all where the deposition of a witness is necessary for the unfolding of the prosecution case and evidently the girl in this case is, she cannot be withheld) by the prosecution without allegations of her having become hostile to the prosecution case which., allegations must be determined on merits.
8. We, therefore, allow this revision petition, and remand the case to the Magistrate directing him to call the girl and allow the accused to put questions to her in cross-examination without prejudice to die right of the accused should necessity arise of asking further questions from her after a. charge has been framed in case a charge is framed. Accordingly, to petition is allowed, the record be-sent to the trying Magistrate immediately.