V.B. Raju, J.
1. In this criminal revision application, it is urged that the learned Magistrate, who tried the case summarily, rightly adopted the warrant procedure, but it is contended that he did not follow all the requirements of the warrant procedure, in particular, the requirements contained in sections 254 and 256, Criminal Procedure Code. Section 254, Cr. P. C. relates to the framing of charge when offence appears to have been proved. In this case, it is urged that no charge has been framed. But this is a simple case of the charge binder section 323, I. P. Code, and in view of Section 537, Cri. Pro. Code, I hold that no prejudice has been caused to the applicant, when there has been no failure of justice. Moreover, the Rojkam says that the charge was framed and read over and explained to the accused.
2. As regards the requirements of section 256, Cri. P. C Section 256 (1) of the said section reads as follows:
If the accused refuses to plead, or does not plead, or claims to be tried, he shall be required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons to-be recorded in writing so thinks fit, forthwith. whether he wishes to cross-examine any, and, if so, which of the witnesses for the prosecution whose evidence has been taken. If he says he does so Wish, the witnesses named by him shall be recalled and. after cross-examination and re-examination (if any), they shall be discharged. The evidence of any remaining witnesses for the prosecution shall next be taken, and, after cross-examination and re-examination, if any, they) also shall be discharged. The accused shall then be called upon to enter upon his defence and produce his evidence.
A question was put to each of the accused persons whether he wanted to recall the prosecution witnesses or whether he wanted to examine them for further cross-examination, and the answer given by accused No. 1 was 'yes'. The accused gave the application, Ex. 6, which reads as follows further cross
It is clear from Ex. 6 that the word ' free ' is used as abbreviation for ' faryadi.' It is clear from the heading and also from the body of the application that the expression ' fare means complainant. (farmania) does not mean further cross-examination, because, the words further cross are used after the word It is therefore clear from Ex. 6 that the accused only gave up his right to further cross-examine the complainant alone. This is also clear from what is noted in the Rojanama, In the Rojanama, it is stated an follows:
Complainant and accused present. Parties' pleaders present. The following complainant's witnesses examined.
P. W. No. 6 Bhikha Parbhu. Accused's pleader submits the pursis that he does not want to further cross-examine the complainant. Further statements of accused recorded. Complainant's pleader submits a report to call the doctor to clarify the record; therefore fixed on 27-12-61 and informed the parties.
It is, therefore, clear that by the previous answer he referred to all the witnesses, and by Ex. 6 he gave up his right with reference to the complainant alone.
3. The contention of the learned Government Pleader that under Section 256 (1), Criminal Procedure Code, the names of the witnesses whom the accused wants to further cross-examine should be given has no substance. It is open to the accused to say that he wants all the witnesses for further cross-examination, in which case he need not give the names. It he wants some of the witnesses for further cross-examination, then only he has to give names. In view of his answer in his examination and Ex. 6 he wants all the prosecution witnesses barring the complainant for further cross-examination. It is conceded that only the doctor has been offered for further cross-examination. The failure to offer the prosecution witness for further cross-examination is a material irregularity and the contravention of the provisions of section 256 Cr. P. C. and the accused must be prejudiced by it. It appears that the doctor was examined in chief and was also further cross-examined.
4. It is next contended by the learned Government (Sic) it is not open to the applicant to raise this point. It is also contended that the point about the contravention of the provisions of section 256. Cri. Pro. Code, has not been taken up before the learned Sessions Judge in appeal and also before the trying Magistrate. The explanation to section 537, Cri. Pro. Code, reads as follows:
In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
The explanation does not say that if the objection had not been raised at an earlier stage, it cannot be considered by the provisional Court. What the explanation says is that the fact that the objection had not been raised earlier should be taken into account while deciding the question of the failure of justice. The words 'earlier stage in the proceedings' refer to the proceedings before the Magistrate and not before the appellate Court.
5. As regards the contention that the point was not taken in the memo of this criminal revision application, the learned Counsel for the applicant relies on ground No. 12 in the memo of revision application, which reads as follows:
That in so far as the learned Judicial Magistrate has failed to follow the mandatory provision of Section 262, Cri. P. C, the trial is vitiated in law.
Section 262 (1) Cri. Pro. Code reads as follows: 'In trials under this Chapter, the procedure prescribed for summons cases shall be followed in summons cases and the procedure prescribed for warrant cases shall be followed in warrant cases, except as hereinafter mentioned.' The contention that this provision has been contravened would include the contention that section 256. Cr. P. C, which relates to the procedure to be followed in warrant cases has not been followed. This contention has been urged in the memo of the criminal revision application before the High Court, but this point has not been urged in the appeal before the learned Sessions Judge at Bhavnagar. The first ground in the grounds of appeal to the Sessions Court is as follows: --
The judgment and order of the lower Court is not correct, legal and proper.' In my opinion, this ground would sufficiently in-elude the present contention. Even in civil cases, the provisions regarding civil appeals are to be followed under the Civil Procedure Code. Order 41, Rule 1 (2) reads as under:
The memorandum of appeal shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively
A distinction has to be made between the ground and argument even in civil cases. Section 419. Cri Pro. Code only says that every appeal shall be made in the form of a petition. There is no reference in it to the ground or argument. If it is contended that argument not mentioned before the Sessions Judge should not be mentioned in revision before the High Court, then an accused person will have to engage best lawyers in the country at the time of the trial or at the time of the appeal. The accused person has liberty to urge a new argument at subsequent stages, although it would not be open to him to set up new facts at subsequent stages. In this case, there is no merit in the contention that the point should not be considered by the High Court in revision.
6. As already stated, the applicant stated that he wanted to further cross-examine the witnesses for the prosecution and he gave a purses that he wanted all the prosecution witnesses except the complainant for further examination, and in spite of this he was not given an opportunity to further cross-examine the prosecution witnesses. In such a case, it must be held that there was a failure of justice.
7. I, therefore, allow the criminal revision application, set aside the order of conviction of accused No. 1 and the sentence passed upon him and order a re-trial from the stage of the examination of accused No. 1 under Section 342, Criminal Procedure Code, after framing the charge under Section 323, Indian Penal Code. Fine, if paid, should be refunded.