1. This is a petn. in revision by Khunni, Motiram Sukha, Satwan Bedrya Phaili & Hukma against the order of the flea. J. at Morena who dismissing their appeal, confirmed the conviction of the accused under Sections 315/135, Gwalior Penal Code & sentence of fine of Rs. 200 each passed by the Addl. Dist;. Mag, Morena. The story of the prosecution is that on 31-8-1916 at about 10 A. M. Jangi was grazing his cows in his field. The cows strayed in the field of Khunni. After abusing Jangi, Khunni went to the village & brought some persona with him. Eight persona assailed Jangi & Udesingh & caused injuries. The first information report was lodged on the same day at 7-80 P. M. by Jangi at police station, Morena, which is about six miles from the place of occurrence. After investigation the police challaned eight accused under Section 815 read with Section 185, Gwalior Penal Code. One Salka was given benefit of doubt & the remaining 7 accused were convicted & sentenced as stated above. Hence this revision.
2. Mr. Amanatulla, the learned Counsel for the appcts. has raised three contentions. His first contention is that on 13-9-1949 prosecution witnessses were recalled for cross-examination, As the Bar Association at Morena passed a resolution not to work on that day the appcts' Vakil did not turn up. The accused prayed for an adjournment which was refused & the accused were deprived of their right to cross-examine the witnesses. On 31-10-1949, another appln. was made by the accused to allow the prosecution witnesses to be cross-examined. But that appln. too was rejected. As the accused have been deprived of their very valuable right their case is prejudicially affected. Under Section 256, Cr. P.C. (Section 226, Gwalior Cr. P, C. after the charge is framed it is obligatory on the Mag. to recall the witnesses named by the accused for cross-examination. The right of cross.examination granted, in this section is absolute right & the Mag. has no power to disallow it. (Vide Lockby v. Emperor A.I.R. (7) 1920 Mad. 201: 21 Cr. L.J. 297, Radhakishan v. Ramkrishna A.I.R. (11) 1934 Nag. 114; 25 Cr. L.J. 912 and Emperor v. Lahshman A.I.R. (16) 1939 Bom. 309 : 31 Cr. L.J. 309 In the present case the accused were deprived of their right of cross-examination on the ground that their Vakil did not turn up. The pleader was, no doubt, in the wrong in not attending the Ct. without taking permission from the Ct. But that is no reason to deprive the accused of their valuable right. It is only after the charge is framed that the accused is in a position to know exact nature of the case he is called upon to meet. & hence the cross- examination of the prosecution witnesses is of great importance to bis case. The Mag., therefore, should afford a full & reasonable opportunity to the accused to exercise his right under Section 256, Cri. P.C. (vide Pita v. Emperor A.I.R. (12) 1926 ALL. 285 : 26 Cr. L.J. 575, Sher Singh v. Emperor A. I. R (3) 1916 Lah. 445 : 17 Cr. L.J. 278 & Murugesa Naiiu, In re A.I.R. (3) 1916 Mad. 142: (16 Cr. L.J. 334 In Subbiah v Vankatasubbamma A.I.R. (29) 1913 Mad, 679: 44 Cr. L.J. 10), the Madras H. C. held that omission to give facilities to the accused for further cross-examination is an omission of grave nature The learned Mag. should certainly have granted an adjournment to allow the accused an opportunity to cross-examine the prosecution witnesses. It is no doubt true that the witnesses were cross-examined before the charge was framed. But as already stated the exact nature of the case is known to the accused only when the charge is framed & hence the Legislature had made a mandatory provision that if the accused so desires he must be given an opportunity to cross-examine the prosecution witnesses. In my judgment refusal to allow such an opportunity has occasioned a failure of justice. This contention must, therefore, be accepted.
3. The second contention of the learned Counsel for the appct. is that the Mag. adopted a wrong procedure in examining the doctor on commission. The third contention is that the charge sheet mentions no time or place or common object. Before proceeding to examine whether these contentions are well founded or not it is necessary to see when these objections were raised. Under B. 537, Cr. P.C., in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice the Ct has to have regard to the fact whether the objection could & should have been raised at an earlier stage in the proceeding (Vide explanation to Section 537, Cr. P.C.. A persual of the record shows that these objections were not raised either in the trial Ct. or in the Sessions Ct. Therefore, these objections cannot be entertained (vide Subramania Siva, In re, 32 Mad. 3 (9 Cr. L.J. 108), Rangpal v. Emperor, is Cr. LJ. 666 : A.I.R. (4) 1917 ALL. 86 & Jugeshwar Singh v. Emperor A.I.R. (23) 1936 Pat. 346 : 37 Or. L. 3. 893. Both these contentions, therefore, cannot be accepted.
4. In the result, I set aside the order of conviction & sentence passed by both the lower Ota. & quash all the proceedings from the stage at which the accused were called upon to enter upon their defence under Section 256, Cr. P.C. & direct that the accused be given an opportunity to cross-examine the prosecution witnesses & the case be proceeded with according to law.