1. The prosecution examined three witnesses, and on 10th April, 1942, the Prosecuting Inspector endorsed the charge-sheet with this statement 'P.Ws. 2, 3, 5, 6 and 7 (the numbers relating to the list of witnesses in the charge-sheet) are given up.' He then signed his name. The Magistrate at once framed a charge against the accused; but for one reason or another the trial proceeded no further. Before the stage had arrived for farther cross-examination, the Magistrate was transferred and the Magistrate whose judgment is now appealed against, assumed office. The accused applied for what is generally termed a de novo trial; and the three witnesses already examined were re-called and re-examined. After that had been done, the prosecution requested that one of the witnesses mentioned in the charge-sheet, No. 2, might be examined for the prosecution before the prosecution closed its case. The Magistrate refused to allow this witness to be examined, and passed the following order:
This witness is once given up by the prosecution and not examined before framing charge. I do not think there is provision for such a course unless the witness is one not examined by the Court of its own accord before framing charge....
2. The matter was adjourned for further argument, when the learned Magistrate said:
The Prosecuting Inspector relies on the provisions under Section 256, Criminal Procedure Code, for the examination of 'remaining witnesses for the prosecution' after the framing of the charge. Here, as it is rightly pointed out by the accused's counsel, there are no witnesses remaining to be examined, as the list given by the prosecution under Section 252, Criminal Procedure Code, has been exhausted with the giving up of P.Ws. 2, 3, 5, 6 and 7 on 10th April, 1942, by the Prosecutor before framing charge; the present application for examining now any of the witnesses given up is not tenable. It is dismissed.
3. The result was that the accused were acquitted. The Crown appeals.
4. The ordinary rule is that a party to a proceeding, whether it be civil or criminal, may examine whatsoever witnesses he pleases, provided they are examined before he closes his case. There is on exception to that rule in Section 253(2), Criminal Procedure Code, which permits a Magistrate for reasons to be recorded, to discharge the accused at any previous stage (that is, before all the prosecution witnesses are examined), if he considers the charge to be groundless. The learned counsel for the' three surviving accused do not contend that there is any rule of estoppel in this matter. There is nothing to prevent a party from changing his mind. It is however argued that section 254, Criminal Procedure Code, read with section 256, Criminal Procedure Code, contains an exception to the general rule that a party may examine whomsoever he pleases. Section 254 makes provision for the framing of a charge by a Magistrate if he considers that the accused has committed an offence after the prosecution evidence has been taken or at any previous stage of the case. Section 256 makes provision for the further cross-examination of witnesses examined before the framing of the charge and the examination, cross-examination and re-examination of the remaining witnesses for the prosecution. The argument of the learned counsel for the accused is that the normal rule under Section 254 is that the charge should be framed only after the prosecution has examined all its witnesses, and so it must be presumed in the absence of a note by the Magistrate to the contrary, that the framing of a charge would show that all the prosecution witnesses had been examined. The section does not however say that the Magistrate can frame a charge at a previous stage only if he is of opinion that it is not necessary to examine further witnesses before framing the charge. The section gives complete freedom to the Magistrate to frame a charge whenever he pleases; and one cannot presume that because the Magistrate has framed a charge, that all the prosecution evidence has been taken. The expression 'remaining witnesses for the prosecution' in Section 256(1), Criminal Procedure Code, presumably means the remaining witnesses that the prosecution wishes to examine. This is the interpretation given to this expression in Emperor v. Burn (1909) 11 Bom. L.R. 1153 an opinion with which I respectfully agree.
5. It seems to me a general rule of law and equity that the prosecution is at libery to examine whomsoever it pleases until the prosecution case has been closed. The prosecution case does not end with the framing of the charge. The accused are permitted to furtner cross-examine the prosecution witnesses and the prosecution to re-examine those witnesses. The prosecution is not closed until the defence begins. I am therefore of opinion that the learned Magistrate was wrong in refusing to examine the witness tendered.
6. Learned counsel for the accused contend that even though the evidence of this witness was wrongly exeluded, Section 167 of the Indian Evidence Act comes to their aid; and this Court should not set aside the acquittal and order retrial unless it is satisfied that the admission of that evidence would result in the conviction of the accused. It is difficult to apply section 167 of the Evidence Act to a witness, when we have no idea what that witness is going to say. If there is a document, it is possible for the appellate Court to judge what effect, if any, the admission or rejection of that document would have on the result of the case ; but one cannot often estimate the effect of the admission of oral evidence. One of the reasons given by the learned Magistrate for acquitting the accused is that the evidence of P.W. 1 is uncorroborated which it would not have been if the Magistrate had not wrongly refused to examine the prosecution witness in question.
7. In the result, the appeal is allowed, the acquittal of the accused set aside, and the case remanded for disposal after examining the witnesses that the prosecution wish to examine. The accused will of course be permitted to enter upon their defence after the prosecution case is closed.