1. This is an application for revision of an order passed by the Cantonment Magistrate of Allahabad, convicting the petitioner of an offence under Section 403 read with Section 109 of the Indian Penal Code, and sentencing him to three months' rigorous imprisonment. The conviction and sentence were affirmed by the Sessions Judge on appeal. Amongst other points taken on behalf of the petitioner, there is one which refers to the procedure of the Magistrate in refusing to summon and examine as a witness on behalf of the petitioner one Ram Narain, who had been convicted of the substantive offence under Section 403 of the Indian Penal Code by a third class Magistrate of Allahabad, but whose ease had been referred by the said Magistrate for a severer sentence under Section 349 of the Code of Criminal Procedure. Ram Narain's case was pending before the Cantonment Magistrate under Section 349 of the Code of Criminal Procedure, at the time the application to summon him as a witness was made, and therefore it cannot be said that his trial was concluded. At the same time he had not been jointly indicted with the petitioner, nor was the offence of which he had been convicted the same offence as that with which the petitioner was charged. Under these circumstances I do not think that the prohibition contained in the last Clause of Section 342 of the Code of Criminal Procedure applies. On a careful perusal of that section it will be apparent that the examination of the accused person for which that section provides, is an examination touching the matter on which he is being tried, and the inference is therefore obvious that the prohibition contained in the last Clause of Section 342 applies to the examination referred to in that section, and does not apply to an examination in another case in which the person who is being examined is not himself an accused person. If the Magistrate's view were correct, it would follow that no man while he stood charged with a criminal offence could possibly be examined as a witness in any criminal trial whatever. I do not think that the Legislature intended this. In this view of the case I hold that the petitioner was entitled to have Ram Narain summoned and examined as a witness, and that he has been prejudiced by the Magistrate's refusal to summon and examine the said Ram Narain. Under these circumstances I set aside the conviction and sentence had before the Cantonment Magistrate of Allahabad, and direct that the petitioner's case be restored to his file, and that he take it up at that stage when he called on the accused for his defence, and that then with reference to the above remarks he proceed according to law.