1. In this case certain persons have been prosecuted and convicted of assaulting the police and rescuing certain persona whom the police had arrested on the 28th of October, 1923. On that occasion the police were driven off after they had used their fire arms killing two men and injuring others. Later a number of villagers were arrested and were placed before a Magistrate on the 3rd of Novembar, 1923. It is a matter of complaint in this Court in revision that these accused persons were never given a reasonable opportunity of defending themselves. On the date on which they were produced in Courts the 3rd of Novembar, 1923, the Magistrate at 3-30p.m. ordered that the case should be heard the next day in the Jail. It appears from the record that practically the first step in the proceedings in the jail on the 4th which was a Sunday wag the presentation of an application by some friend of the accused asking for an opportunity to engage, a pleader and that the evidence might be taken in that pleader's presence. In view of Section 310 there can be no doubt that the accused ware entitled to be represented by a pleader. Bat this is not the most serious error complained of by the applicants here in revision. The reasonable course to adopt if that had beau the only application, would have been for the Magistrate to proceed with the evidence for the prosecution in chief and then, at any rate, to allow, if it had not already been allowed, a reasonable time for the accused to appoint a pleader. This application was, however, bluntly refused on the allegation that the accused had plenty of time to appoint pleaders since the previous day and that he would have to send the prosecution witnesses away again. Neither of those reasons appear to ma a valid reason. What ha should have done is to tall the accused that he would proceed with the evidence-in-chief of the prosecution witnesses and would then allow them a reasonable time to appoint a pleader. The next step was that ha examined six of the prosecution witnesses and took down the accused's statements, framed a charge-sheet and said that ha would take the remaining prosecution witnesses the next day. At the end, after the statements of the accused, he asked them whether they wished to cross-examine. Having had their application for time to appoint a pleader rejected, these ignorant villagers very naturally said, 'no they do not wish to crossexamine.' No one who has had 12 months experience of the lower Courts and of this type of villager would for one moment expect that they' would give any other answer. They would be utterly incapable of themselves cross-examining the witnesses. On the 5th of November, further prosecution witnesses ware examined and the accused ware further examined and they stated that they would produce defence-witnesses. By this time they had succeeded in engaging the services of a pleader who put in an application asking for another date to be fixed for cross examination. There was nobody there who could properly instruct him on behalf of the accused. The pairokar and relatives of the accused lived in Agra and the pleader had no time to get his instructions through the relatives who had come from Agra to Mainpuri. The Deputy Magistrate refused this application on the ground that the pleader could get his instructions from the accused themselves. In a later application which was filed on the 6th, it is stated that the pleader also made an oral application to be allowed to cross-examine the accused on the 5th, presumably when the application for postponement had been rejected, and that this application was refused on the ground that he had no right left. On the 6th a further application in which all the previous proceedings were set out at length was filed asking for the prosecution witnesses to be resummoned. On this application the pleader was told that the case was not fixed for the 6th and if the accused wanted the prosecution witnesses he could summon them as defence witnesses paying the necessary expenses. Subsequently on the 13th of December it appears that the Deputy Magistrate summoned three of the prosecution witnesses, not four as he says under Section 540, Criminal Procedure Code. In an explanation which has been furnished by the learned Deputy Magistrate to this Court he says that, as the defence had left no legal right of cross-examination at that stage, he re-called the witnesses under Section 540 of the Criminal Procedure Code at the desire of the counsel for the defence, and questions of the nature of cross-examination suggested by the defence Counsel were put to the witness 'from the chair.' There is nothing whatever to justify this procedure. If a witness was called under Section 540 both sides had a right to cross-examine that witness freely. It is wholly misleading to describe as cross-examination that, which consisted of certain questions being suggested by the defence to the Court and those questions being put by the Court. I have detailed these proceedings at length because I have no hesitation in holding that the accused were not fairly treated. This was an important case and a serious case for the Crown. It was no less serious for the accused. It is obviously in accordance with the spirit of the law that they should be represented by a pleader if they wished to be so represented. It is obviously in accordance with the spirit of the law that they should have an opportunity of cross-examining the witnesses. The prosecution and the Deputy Magistrate cannot fall back on the fact that on the 4th of November when the accused were examined they were asked if they wished to cross-examine. Even putting aside the fact that their right of being represented by a pleader as laid down in Section 340 had been refused, I should still hold that this was merely a literal compliance with the law and a most obvious breach of it in the spirit, and I would invite the attention of the Deputy Magistrate to the remarks of Mr. Justice Aikman in Empress v. Ram Charan (1895) A.W.N. 40 and particularly to the remarks of Ameer Ali and Pratt, JJ. in Sheo Prakash v. Rawlins (1901) 28 Cal. 594 where they said 'The work of this Court would be appreciably lightened, if the Subordinate Magistrates, in dealing with the law relating to the rights of accused persons, would construe it in a less technical spirit than they are sometimes accustomed to do. In the inferior Courts the right principle is occasionally reversed and a person is presumed to be guilty the moment he is accused and every attempt on his part to prove his innocence is regarded as vexatious.' I have no hesitation whatever in holding that while the Magistrate could have bean right in proceeding up to the end of the prosecution witnesses, from that stage he should have allowed an adjournment in order to enable the accused to appoint a pleader if there had not already been a sufficiently long period, and that adjournment should, have been long enough to enable the pleader to get proper instructions and to prepare himself for cross-examination. What is a proper period must be a question for reasonable decision in each case. In this case the whole proceedings of the 4th and the 5th were most unwarrantbly rushed and the accused were really given no proper opportunity of defending themselves.
2. I set aside the whole of the proceedings subsequent to the termination of the evidence of the last prosecution witness on the 5th of November and direct that the Magistrate proceed to hear the case properly and fully from that stage. To this extent the application is allowed. I am informed that the Magistrate in question has bean transferred. If this is not so, the District Magistrate will sea that the case is taken up again, not by the same Magistrate but by some other Magistrate.