1. Rampal lodged a complaint against Mangia and Lakkha of offences under Sections 447 and 504 IP. C. in the Court of the First Magistrate, Sawai Madhopur, on the 19th of October, 1948, alleging that in his absence on the 14th October, 1948, the accused entered his premises and after having demolished his house took possession of his land. After issuing process for the attendance of the accused, and after holding an enquiry, the learned Magistrate, on the 15th June, 1949, framed charges against both the accused under Sections 447 and 504 I.P.C., and fixed the 27th of July, 1949, for further proceedings in the case. The accused had asked for re-cross-examination of the prosecution witnesses and the Magistrate therefore directed the complainant either to produce his witnesses himself or to apply before a date fixed by the Court for issue of summons for his witnesses. The complainant paid the process fee, and applied for the issue of processes for summoning his witnesses, and on the date fixed for the hearing, the complainant and his witnesses did not turn up, and the accused attended the Court. The Magistrate thereupon held that as the statements of the prosecution witness had not been subjected to re-cross-examination which was demanded by the accused, that part of the evidence could not be read against the accused to secure their convictions and taking this view of the case, the learned Magistrate acquitted the accused. The complainant filed a revision in the Court of the Assistant Sessions Judge, Gangapur, against the order of acquittal passed by the Magistrate, which was dismissed on the 10th October, 1949. The complainant has now filed this revision.
2. The learned counsel for the complainant has argued that the order of the Magistrate, which purported to be under Section 258 of the Cri. procedure, was not according to law. He further urged that after the framing of the charges in the trial of a warrant case, it was the duty of the Court to re-summon the prosecution witnesses, and if the prosecution witnesses after having been duly served failed to attend the Court, it was for the Magistrate to compel their attendance and it was not proper for the Magistrate to have acquitted the accused under these circumstances. He has put reliance on the rulings of cases reported in 'HAR KISHAN v. EMPEROR', AIR (24) 1937, All. 127; SAGHIR UDDIN V. MT. MUNNI', AIR (36) 1949 All 428; 'VARADARAJULU v. JANAKIRAMA', AIR (29) 1942 Mad 552(1); 'EMPEROR v. NAZO', AIR (30) 1943 Sind 148 and 'RAM BAKSH v. JAI-RAM DAS', AIR (12) 1925 Oudh 306(1).
3. The counsel for the accused has cited the case reported in 'SADEK MAHAMMAD v. JYO-TISH CHANDRA', AIR (35) 1948 Cal., 83, and has argued that as the order of the learned Magistrate was on the merits of the case, and it was not an order made in default of the attendance of the complainant, it was according to law and this Court should not now revise it.
4. It may be observed that the facts of this case are similar to those in the case reported in AIR (36) 1949 All. 428. In that case, which was filed on a complaint under Sections 494 and 498 P. C., the trial Court, after recording the prosecution evidence, framed a charge against the accused, and fixed a date for cross-examination of the prosecution witnesses. When the case was called out on the date so fixed, the complainant and his witnesses were absent, and at the request of the counsel for the complainant the case was adjourned to another date. On that date also, the complainant was absent and his counsel again sought an adjournment, but the Court rejected the application, and refused to consider the evidence of the prosecution witnesses examined before the framing of the charges on the ground that they were not subjected to re-cross-examination and concluded that there was left no evidence against the accused and acquitted them. On a revision filed by the complainant, a Division Bench consisting of Wanchoo and Desai JJ. held that in the trial of a warrant case after the framing of the charge, the duty of recalling the prosecution witnesses under Section 256 Cri. p. C. is cast upon the Magistrate trying the case, and the complainant should not be penalised for their absence when he was not at fault. The decision of 'Benett J. in 'HARIKISHAN v. EM PEROR', AIR (24) 1937 All 127, was relied upon on this point. It was further observed that the duty of procuring the attendance of the witnesses cannot be laid upon the complainant's shoulders. The opinion expressed by Boys J. in a previous case 'EMPEROR y. NAZIR HUSAIN', AIR (17) 1930 All. 795(2) which was practically on the same lines as the decision in 'AIR (35) 1948 Cal. 83', and which is now cited by the counsel on the opposite side, was not considered to be good law. The revision in that case was allowed, and the order of acquittal was set aside, and the case was remanded for re-trial from the stage of the charge.
5. The case in 'AIR (29) 1942 Mad. 552(1)', is also of the same nature. In that case, on the date after the charge was framed the complainant was absent. The Magistrate thereupon passed an order purporting to be one under Section 258(1) Cri. p. C. acquitting the accused. It was held by Horwill J. that where a Magistrate has framed a charge, he cannot dismiss the case for default......The only section, which deals with the procedure upon default of appearance of the complainant in warrant cases, is Section 259, Cri. P. C. The Magistrate could not have acted under that section, because the charge had already been framed, and the accused could not have been discharged after the charge is framed. The Magistrate therefore acted illegally.
6. Similarly in 'AIR (12) 1925 Oudh, 306(1), it was held that an order of acquittal in a warrant case can be passed only under Section 258, i.e. on a finding that the accused is not guilty. The accused cannot be acquitted merely because the complainant is absent.
7. In 'AIR (30) 1943 Sind 148', Davia C. J. and Weston J. held that the acquittal of the accused under Section 359, after the charge has been framed, on the ground of the complainant's absence, is wrong, because Section 259 does not provide for acquittal of an accused person in the absence of the complainant, but for his discharge, and such order of discharge can only be made at a time before a charge in the case has been framed. When the charge has been framed, the absence of the complainant has no effect, and the Magistrate is bound to proceed to depose of the case on the merits. In this case the Magistrate purported to act under Section 259 Cri. P. C., which was obviously wrong.
8. In the present case, the Magistrate has purported to act under the provisions of Section 258, and he has expunged the prosecution evidence for want of re-cross-examination, and has therefore passed an order of acquittal in favour of the accused. Such an order has been suggested to be a correct one in these circumstances according to the judgment delivered by a Division Bench of the Calcutta High Court in the case reported in 'AIR (35) 1948 Cal 83. The observations in that case are in the following terms:
'Where after a charge has been framed and the complainant and his witnesses are absent on the day fixed for their cross-examination, it is not proper to discharge the accused, as there is no provision for discharge of an accused after the charge has been framed.
The proper order to pass is: As the prosecution witnesses are absent and cannot be cross-examined, their evidence in examination-in-chief should be expunged, and as there is no evidence in the case, the accused is acquitted.'
9. The Magistrate, in the present case, has made an order exactly in the same terms as has been suggested in the judgment of 'AIR (35) 1948 Cal. 83'. The question therefore is whether an order made on merits regarding acquittal of the accused after the framing of the charge and on account of the absence of the complainant and his witnesses is, according to law. It may be pointed out that the suggestion made in the judgment of the case 'AIR (35) 1948 Cal. 83', was really not necessary for the decision in that case. In that case, a complaint was filed against the accused for an offence under Section 504 P. C., and after the charge was framed, the case was adjourned for cross-examination of the prosecution witnesses, but on the date so fixed and on a subsequent date, the complainant and his witnesses were absent. The complainant did not even pay process fee for summoning his witnesses. The Magistrate therefore made an order discharging the accused. The complainant then filed another complaint against the accused for the same offence, and it was objected to by the accused on the ground that the previous order of the Magistrate, even though it purported to be one for discharge, was in law an order of acquittal, and the complainant therefore could not revive the proceedings against the accused. The High Court held that the previous order even though it was that of discharge should be construed to be for the acquittal of the accused, as after the framing of a charge, the accused could not have been discharged, but they could only be acquitted. The second complaint filed by the complainant was therefore held to be not competent. In dealing with this subject, the Court perhaps went out of its way to have suggested the type of an order to be made by a Magistrate in case the complainant & his witnesses are absent, & the complainant does not even care to take steps for summoning his witnesses through the Court. But any way, the opinion expressed in the judgment was gratuitous and cannot be taken to be authoritative. Section 259 Cri. P. C. lays down the procedure to be followed when in the trial of a warrant case before the framing of a charge a complainant is absent, but in such case, after the framing of a charge, the procedure does not provide for the dismissal of the case merejy on the ground of the absence of the prosecution witnesses or the complainant. The Code of Criminal Procedure casts a duty upon the Magistrate trying a warrant case of ascertaining from the complainant the names of his witnesses and of summoning them, vide Section 252, and after recording the prosecution evidence if he considers that there are grounds for presuming that the accused has committed an offence-triable as a warrant case, he is to frame a charge and alter recording the plea of the accused he has to find out from the accused if he desires to cross-examine any of the prosecution witnesses, and if the accused so desire to re-cross-examine the prosecution witnesses. Section 256 requires that the witnesses named by the accused shall be recalled and after cross-examination and re-examination, if any they shall be discharged. The provisions in this behalf of Section 256 are mandatory, and it should be considered to be duty of the trial Court to recall the prosecution witnesses. The absence of the complainant or his witnesses under these circumstances should not be considered to afford an opportunity to the trial Court to acquit the accused simply on the ground of the absence of the complainant and his witnesses. In the present case, the complainant had done all that was within his powers to do for procuring the attendance of his witnesses. He had paid the process lee. Their summons were duly served and the witnesses failed to appear. The complainant therefore was not at fault in this respect. He could not therefore have been penalised for his non-attendance as has been done by the trial Court. The case in 'AIR (361 1949 All, 428', has discussed several rulings of that Court on this subject, and appears to be a sound decision. The argument that 're-called' does not mean 'resummoned' in the meaning of Section 256 Cri. P, C. does not appear to be sound. The use of the word 're-called' in Section 256 contemplates resummoning of the witnesses if they were not actually present in Court or were not bound down to reappear. The judgment of Bennet J. in AIR (24) 1937 All 127 is in accord with this view.
10. The order of acquittal made by the trial Court in view of the aforesaid discussion was not I justified, and this revision is therefore accepted, and the order of acquittal is set aside, and the case is remanded to the trial Court with a direction to try the case from the point of re-examination of the prosecution witnesses after the framing of the charge.
11. I agree.