B.P. Beri, C.J.
1. A report was made to the Police in regard to the theft of a she-buffalo. The police gave a final report finding PO case. The informant was dissatisfied and he filed a complaint and he did so on January 21, 1971 On June 9, 1972, all the four accused persons namely. Kilji, Khusal Dan, Ajit Dan and Kham. Dan were granted exemption from personal apprarance. The case dragged on for one reason or the another until November 28, 1973, and not a single witness of the prosecution was examined The learned Magistrate on that date suo moto ordered that the exemption granted to the above named four persons on June 9, 1972, should be set aside, because there was no identification parade and, the warrants were issued against the accused in the first instance and the accused had to be personally examined.
2. The reasons given by the learned Magistrate seemed to be correct to the learned Additional Sessions Judge No. 2, Jodhpur when the matter was taken before him and these four accused persons aggrieved by that order as well, are before me.
3. I have heard learned Counsel for the applicants. His submission is that the reasons given by the learned Magisuate for insisting the attendance of the four accused persons are had in law.
4. These reasons in the present case, in my opinion, are certainly erroneous. The case dragged on for about one year and inspite of seventeen hearings the prosecution could not manage to examine even a single witness. Now, the learned Counsel for the complainant says that for the identification of these four accused persons by two witnesses of Jodhpur, namely Siwai Khan and Bhanwarukhau the presence of the accused will be necessary. Further, learned Counsel entertains an apprehension and, I think, not unjustified, that the presence of these two witnesses will be dragged on endlessly so that the accused may, out of the tyranny of coming from 40 miles away, might be reduced to the necessity of some how surrendering to the wishes of the complainant. I do not say that it will necessarily happen but it is not an unusual strategy in private complaint case The learned Counsel on behalf of the complainant therefore, urged that he will get these two witnesses of Jodhpur summoned on one day and on the next date the four accused persons whose personal attendance has been exempted, may be called for the purposes of identification and that their presence would not be necessary in the examination of the rest of the witnesses. I think, this is a reasonable attitude. The learned Magistrate will first fix a date for the examination of the two witnesses namely, Sawai Khan and Bhanwaru Khan. Until both the witnesses have been served and are actually present in Court, the presence of the four accused persons shall not be insisted upon. The learned Magistrate may fix two dates of hearing with an interval of three to four days as he may think fit, and after these witnesses are served and are present, the accused may be asked to be present on the next date of hearing. Since both witnesses named above are of Jodbpur, they will not be put to any inconvenience, if they are asked to appear on the next date of hearing when the accused persons would also be in attendance. Till these witnesses are served and are present the presence of the four accused persons is hereby dispensed with.
5. This revision petition is allowed in these terms.
6. I may repeat, in the interest of clarity, that the learned Counsel for the complainant does not insist the presence of the four accused persons so far as that examination of the remaining prosecution witnesses is concerned.