1. This is a reference made by the Third Additional Sessions Judge, Indore.
2. The facts giving rise to this reference are as follows:
Accused Kishanlal is being prosecuted for an offence under Section 379 I. P. C. before the Railway Magistrate Indore. In this case after the examination of the prosecution evidence charge was framed against the accused on 25-5-1955. The accused was questioned as to whether he wanted any of the prosecution witnesses to be cross-examined and he informed that he wanted to cross-examine the prosecution witnesses Nos. 1, 2, 4 and 7.
Accordingly the Court fixed 4th and 5th of August 1955 for their cross-examination. On 4th the counsel for the accused was absent. The accused thereupon applied for adjournment. He also stated in the application that he could not obtain the copies of the statements of the prosecution witnesses whom he wanted To cross-examine.
The Court rejected the application and the accused was required to cross-examine the witnesses P W. 1 and P W. 2 who were present in the Court that day. The accused accordingly cross-examined those witnesses in the manner he could do. The case was then taken up on the 5th for cross-examination of the remaining two witnesses. On this day too the accused's counsel was absent,
Accused however on this day did not take the risk of cross-examining the remaining two witnesses and their cross-examination was closed and the case was fixed for defence evidence on 29th and 30th of September 1955. Much in advance of this date the accused applied on 8-9-1955 for recalling P.Ws. 1 and 7 for cross-examination. The application purported to be one under Section 257 of the Criminal P. C. The Magistrate dismissed the application on the specious ground that it was intented to delay the case.
3. The accused thereupon preferred a revision petition before the Court of Sessions and the learned Third Additional Sessions Judge being of the opinion that the trying Magistrate ought to have exercised its power under Section 257 Criminal P. C. under the circumstances of the present case has made this reference.
4. In my opinion having regard to the facts stated above, it is clear that the trying Magistrate ought to have exercised his powers under Section 257 Criminal P. C. at least in the interest of justice. The accused had a valuable right to cross-examine the prosecution witnesses. For reasons for which he could not be blamed he could not avail himself of that right effectually due to the absence of his counsel.
There was time enough and the Court could have appropriately exercised its powers for recalling the two witnesses whom he wanted to cross-examine. The application was quite proper under the circumstances and the reason given by the trying Magistrate that it was intended to delay can hardly have any force.
5. In view of these considerations the reference deserves to be accepted.
6. The learned Government Advocate who appeared for the State has frankly conceded that the learned Magistrate ought to have exercised its power under Section 257 Criminal P. C. for recalling the witnesses asked for the purpose of cross-examination.
The reference is therefore accepted and the case is sent back to the trying Magistrate for doing the needful in the light of the observation made above.