R.L. Narasimham, C.J.
1. This is a petition by the complainant against an order dated 11-3-59 passed by Sri J. Misra, Magistrate 1st Class, Berhampur expunging from the record the evidence of lour prosecution witnesses, namely P. Ws. 4, 5, 6 and 7 during the course of a trial on the ground that the petitioner (complainant) unduly delayed in producing them for the purpose of cross-examination.
2. The relevant facts are as follow: The petitioner filed a complaint against the opposite party on 11-9-56 for an offence under Section 379 I. P. C. The case had a chequered career in the courts of several magistrates and witnesses were examined piece-meal on several dates. The main examination and cross-examination before charge took place in 1957 and 1958. P. W. 4 was examined in chief and cross-examined before charge on 20-9-1957, P. W. 7 on 30-12-57, P. W. 6 on 29-7-58 and P. W. 7 on 22-11-58. Charge was framed on 17-1-1959. Then the learned Magistrate addressed himself to the question of cross-examination, after charge, of all the prosecution witnesses. He directed the complainant to produce all the witnesses for such cross-examination. On 7-2-59 the complainant, filed a petition stating that the witnesses refused to attend unless summoned by the Court and prayed for another adjournment undertaking to take necessary steps for securing the attendance of those witnesses in Court and to get ready for trial.
In this petition, however, he did not expressly request the Court to issue summons for the production of these witnesses. The Court accordingly granted him an adjournment till 21-2-1959. On that day two prosecution witnesses, namely P. Ws. 1 and 9 were cross-examined and discharged and the case was again adjourned to 11-3-1959. In the meantime, on 26-2-59, the complainant filed another petition before the learned Magistrate requesting him to summon five of his witnesses, namely, P. W. 2 (Raghu Rout), P. W. 3 (Khali Patra), P. W. 4 (Dhru-ba Dalai) P. W. 8 (Harm Das) and P. W. 5 (Dharani Bissoyi), and further undertook to pay their batta for attending Court. The learned Magistrate directed the Bench Clerk to take urgent action on this petition and then when the case was taken up on 11-3-1959 P. Ws. 4 and 5 were not present and the other three witnesses, namely P. Ws. 2, 3 and 8 were cross-examined and discharged. The learned Magistrate refused to grant any further adjournment and then expunged from the record the evidence of P. Ws. 4 and 5 and also the evidence of P. W. 6 (Raghab Naik) and P. W. 7 (Udayanath Muni) who are both officials, the former being the A. S. I. Berhampur P. S. and the latter being the Head Clerk of the office of D. R. R. O., Ganjam. The petitioner felt aggrieved by this order.
3. The manner in which this case has been conducted in the Magistrate's Court is not creditable either to the Magistrate or to the petitioner. The case dragged on for more than two years and a half on some pretext or other and there were also frequent transfers of Magistrates. But here we are concerned with the position as it stood after charge was framed on 17-1-1959. The P. Ws. had already been examined in chief prior to that date and also cross-examined before charge. Under Section 256 Cr. P. C. it was the duty of the Magistrate to recall these witnesses so as to enable the accused to cross-examine them. As the offence under Section 379 I. P. C. is a cognizable one the complainant was not bound to pay process fee for summoning the witnesses (vide note 2 to Chapter I of part V, of G. R. and C. O. Criminal Vol. 1 page 76).
The Magistrate should therefore have summoned these witnesses to appear on the next date for the purpose of cross-examination, viz. on 7-2-59. This was not done with the result that they were not present in Court on that day. The petitioner also was partly to blame in not requesting the authorities to issue summons to the witnesses especially to the two official witnesses (P. Ws. 6 and 7) to appear on that day. He merely asked the Court to give him further adjournment to enable him to take steps for their production and further undertook to pay their batta. He partially failed in his efforts inasmuch as, on the next two dates, namely, 21-2-59 and 11-3-59, four witnesses were not available for cross-examination, viz. P. Ws. 4, 5, 6 and 7. But when on 26-2-59 he expressly requested the Court to summon the witnesses for the purpose of cross-examination his responsibility ceased and it was the Court's look-out to issue coercive process to secure their attendance, as permitted by law. Hence on 11-3-59, when P. Ws. 4 and 5 were not present in court the court should have taken further steps to enforce their attendance and should not have put the blame on the complainant and expunged their evidence from the record.
4. Again, as regards the official witnesses, Namely P. Ws. 6 and 7 the Court should have realised that it would not be possible for the complainant to secure their attendance and it should have issued summons on them through the Official channel, for their appearance in Court on the date fixed for their cross-examination. Expunging of their evidence on the ground that the complainant was not vigilant in prosecuting the case, was not, in the circumstances, justified.
5. I find that the prosecution evidence had been closed and the accused has been examined under Section 342 Cr. P. C. and the case is now posted for defence. For the ends of justice therefore the only course that can be followed at this stage is to direct the production of the aforesaid four witnesses namely P. Ws. 4, 5, 6 and 7 for the purpose of their further cross-examination under Section 257 Cr. P. C. The petitioner has undertaken to bear the expenses of P. Ws. 4 and 5 and he may deposit their batta as required by the Court before summons is issued for their appearance. So far as P. Ws. 6 and 7 (the Official Witnesses) are concerned, it will not be fair to ask the complainant to bear their expenses. The Court may summon them and they will be entitled to usual T. A. etc. as admissible according to the rules.
6. I would therefore allow this petition, set aside the order of the Magistrate dated 11-3-59 expunging from the record the evidence of P. Ws. 4, 5, 6 and 7 and direct him to secure their attendance for the purpose of cross-examination by the defence, under Section 257 Cr. P. C. on payment of costs as mentioned above, and then dispose of the case according to law.
7. I should further point out to the learnedMagistrate that once a witness appears in Court andis examined in chief or cross-examined before charge,it is always advisable to take a P. R. bond fromhim for his appearance before Court when next required. This will avoid the necessity of summoninghim again for the same purpose. Doubtless whenthe complainant himself undertakes to produce thewitnesses for the purpose of cross-examination anddoes not need the help of the Court for his production there may not be any such necessity to take aP. R. Bond from him. But it is desirable to expressly question the complainant on this point and notein the order-sheet whether he undertakes to producethe witness himself or whether he wants the Courtto summon them and whether P. R. bonds should betaken from them. I would in this connection invitethe attention of the Magistrate to the observationsof the Allahabad High Court in their decision reported in Saghir Uddin v. Mst. Munni, AIR 1949 All428: 50 Cri LJ 674.