1. Six persons were accused in C.C. No. 1451 of 1930 on the file of the 2nd Class Magistrate of Madura Town of whom four were convicted Under Section 325, I.P.C. On appeal two of these were acquitted and the conviction was confirmed as regards accused 1 and 2. This revision petition has been filed by them. There are only two really arguable points in this petition. The first is that the failure of the Court to ask the accused whether they wished to cross-examine the prosecution witnesses after the framing of the charge vitiates the whole proceedings. The second is that the evidence of one of the witnesses in a previous trial, (the present trial being a de novo one), who has since died, is inadmissible. The learned appellate Magistrate has dealt with the first point and stated that the appellants' advocate
does not seem to have applied for the re-cross-examination of the prosecution witnesses. Evidently the appellants did not want to re-cross-examine.
2. He further held that the omission to ask the appellants was a mere irregularity and the conviction is not thereby vitiated. He quotes in support of the latter position a ruling which neither the appellants' counsel before me nor the Public Prosecutor has been able to identify. The counsel for the appellants relies on the rulings in In re Raju Achari A.I.R. 1927 Mad. 78, Chagpal Narainji v. Emperor A.I.R. 1929 Sind 151, and Girdhari v. Emperor, . The contention of the learned Public Prosecutor is that Section 256 only applies where the charge is framed before the prosecution evidence has been completely recorded. He quotes Gangadhar v. Bhanji Sao A.I.R. 1925 Nag. 147. This is a decision, by the Judicial Commissioner of Nagpur and it is in conflict with the ruling of the same Court quoted above in . I am unable to agree with the contention that Section 256 only applies where the charge is framed before all the witnesses for the prosecution are examined. In this connexion I might refer to the Full Bench case in In re Karuthaswami Servai A.I.R. 1930 Mad. 331, in which I took part. In that case Curgenven, J., has considered Sections 256 and 257 and I entirely agreed with his view. The words in Section 257 'after he has entered upon his defence' in my opinion rule out the contention that Section 256 has no application if the charge is framed before the prosecution evidence is completed and that only Section 257 is then applicable. As to the effect of the irregular procedure, the cases quoted above for the appellants hold that it vitiates the trial. On the other side is quoted Rajdhari Lal v. Rameshar Lal : AIR1927All469 . In view of the decisions of the Madras High Court I am unable to follow this ruling. I must therefore hold that the trial has been vitiated by the failure to ask the accused whether they wished to cross-examine the prosecution witnesses.
3. Although this renders consideration of the second point unnecessary for purposes of this petition, I think it is better to express my opinion on it as it may arise again when the case is remanded for retrial. Prima facia the evidence of a witness who has been examined and whom there was an opportunity to cross-examine is admissible Under Section 33, Evidence Act, if he has since died. The following cases were quoted for the appellants. Sahib Din v. Emperor A.I.R. 1922 Lah. 49; Emperor v. C.A. Mathews : AIR1929Cal822 , Umar Hajee v, Emperor A.I.R. 1923 Mad. 32, and Narsingh Doss v. Gokul Prasad : AIR1928All140 . With regard to Sahib Din v. Emperor A.I.R. 1922 Lah. 49 the witness was not dead and the observation relied on was an obiter dictum. Umar Hajee v. Emperor A.I.R. 1923 Mad. 32 was also a case where the witness was not dead. With regard to Narsingh Doss v. Gokul Prasad : AIR1928All140 the witness died before the first cross-examination was completed. Obviously there was not the opportunity to cross-examine contemplated in Section 33, Evidence Act. The two others are Calcutta cases and they proceed on the principle that in a warrant case until the stage provided for in Section 256 is reached the accused has no right to cross-examine, and consequently the evidence of a witness given before framing of the charge is not admissible Under Section 33, Evidence Act. That ruling is entirely opposed to the ruling in In re Muthiah Chetty A.I.R. 1924 Mad. 735 of this Court where Wallace, J., held that no Magistrate or Court can refuse to allow an accused to cross-examine prosecution witnesses before the charge is framed, and that such a procedure is most irregular and in contravention of law. With respect I entirely agree with this view. I therefore hold that the evidence of this witness, who had died and whom the accused had an opportunity to cross-examine in the previous trial is admissible. I might point out that it has always been held that the evidence of a witness given in a preliminary inquiry whom the accused had an opportunity to cross-examine is admissible in Sessions if that witness is dead, and the argument that the accused has lost the opportunity of further cross-examining him in Sessions does not affect its admissibility however much it may affect the value to be put upon it.
4. The conviction must be set aside. It cannot be said that the appellants, who were only sentenced to imprisonment till the rising of the Court, have undergone any punishment hitherto. The offence is a serious one and the case is therefore remanded for retrial by some other Magistrate.