1. The two appeals to which this revision petition relates have not been heard upon the merits, as the Sessions Judge has ordered a re-trial of the case in consequence of what he regards as illegalities in the original trial.
2. On 26th April, 1928, the trying Magistrate refused to adjourn the case when the Vakil for the accused intimated his intention of making an application to the High Court for a transfer. The learned Sessions Judge is of opinion that the Magistrate in refusing an adjournment on that occasion acted in violation of Section 526 (8), Code of Criminal Procedure. The learned Public Prosecutor contends that the intimation of intention to apply for a transfer was not made in the coarse of the trial, which had been closed before it was made, though judgment had not then been pronounced, and, therefore, the Magistrate in refusing to adjourn the case did not contravene the provisions of Section 526 (8). It appears that before the Sessions Judge the Public Prosecutor of Ramnad conceded that after refusing to adjourn the case the Magistrate heard arguments in the case before he pronounced judgment. If that were so, the trial would not have been over before the intimation of intention to apply for a transfer was made. In an affidavit in support of an application to this Court for bail (Criminal Miscellaneous Petition No. 288 of 1928), the Vakil for the accused asserted that some arguments in the case were heard by the Magistrate after he refused the adjournment and before he pronounced judgment. But the Magistrate himself has stated that he heard no arguments in the case after refusing the adjournment. His diary shows that, when the judgment was about to be pronounced, an application under Section 526 was made and dismissed and that he then pronounced judgment. His order on the application itself shows that the application was presented when the judgment was about to be pronounced. The prosecuting Sub-Inspector of Police who conducted the prosecution, has made an affidavit that no arguments were heard after the application for adjournment was made. I am informed that the Local Public Prosecutor who made the ' concession' before the Sessions Judge had not appeared at any earlier stage of the case and was not instructed to make any such ' concession '. I must accept the Magistrate's account of what happened before him, which as I have mentioned, is supported by the record of the case, and find that no argument was heard after the application for adjournment was made but that the case had been closed before that application was made. It has been contended for the accused that, nevertheless, an application made before judgment was actually pronounced would be made in the course of the trial within the meaning of Section 526 on the ground that the trial includes the pronouncing of judgment. But Sections 366 and 497 of the Code make it clear that a trial, as that word is, used in the Code, is over before the judgment is pronounced and that the pronouncing of judgment is no part of the trial. I find, therefore, that the intimation of intention to apply for a transfer and the application for adjournment for that purpose on 26th April, 192i5, were not made in the course of the trial and that the Magistrate's refusal to adjourn the case did not violate the provisions of Section 526 (8) and did not invalidate the trial.
3. The learned Sessions Judge has also found that the trial was vitiated because P. W. No. 7 was not produced for further cross-examination after the framing of the charge, though the accused had intimated that they wished to cross-examine him again. There is no record that after the charge was framed on 13th November, 1926, the accused were asked in accordance with Section 256, Criminal Procedure Code, whether they wished to cross-examine the prosecution witnesses. But that is of no consequence as they themselves put in a list of the witnesses whom they wished to cross-examine again, which the diary shows that after the framing of the charge their Vakil promised to do. In their list six witnesses were entered, including P. W. No. 7 but eventually P. W. No. 7 was not cross-examined again. The diary of the Magistrate shows that on 26th November, 1926, P. Ws. Nos. 1,3,4 and 5 were cross-examined again and P. W. No. 6 was absent and that the case was adjourned to 16th December, 1926, for further cross-examination and examination of defence witnesses without any mention of P. W. No. 7. On 16th December, 1926, P. W. No. 6 was again absent and the Magistrate noted in his diary: '11 defence witnesses present. Prosecution Witness No. 6 is absent for further cross-examination. The summons sent to him had not been returned served. As his further cross-examination is pressed by the defence and as it is not over, no defence witness can be examined.' Here again there is no mention of P. W. No. 7 which could be strange if the case was being delayed and the 11 defence witnesses left unexamined because P. W. No. 7 as well as P. W. No. 6 had not been cross-examined again. But it appears that P. W. No. 7 was actually in the Magistrate's Court on that day and was examined as a witness in a counter-case between the same parties, and yet no attempt was made to cross-examine him in this case. In those circumstances the omission to say anything in the diary about him as a witness still to be cross-examined becomes even more significant. On 6th January, 1927, the case was again adjourned for the examination of P. W. No. 6 without any mention of P. W. No. 7. On 24th January, 1927, the cross-examination of P. W. No. 6 was dispensed with by the accused, and they were examined, as would be done at the close of the prosecution evidence under Section 342, Criminal Procedure Code, and the evidence of the defence witnesses was begun which would not have been done if the accused still wanted, to cross examine P. W. No. 7. The trial dragged on after that for 15 months, but not a word was ever said by the accused during that time about wanting to cross-examine P. W. No. 7. When they appealed to the Sessions Judge, in May, 1928, nothing was said about P. W. No. 7. In supplemental grounds of appeal put in 2 1/2 months later, it was represented that they were aggrieved by not having had an opportunity to cross-examine P. W. No. 7 again. Prosecution Witness No. 7 was a medical witness, who had been cross-examined at length before the charge was framed. It is unfortunate that the Magistrate did not make a note in the record that the accused dispensed with P. W. No. 7's further cross-examination. But I agree with the learned, Public Prosecutor that from the entries in the diary of the Magistrate from the failure of the accused to cross-examine P. W. No. 7 when he attended the Court on 16th December, 1926, from the fact that they began the examination of their defence witnesses without protest on 24th January, 1927, and from the fact that though they protested about over matters in the case and did their best to prolong it. They never suggested during the remaining 15 months before the trial ended that they had any grievance in regard P. W. No. 7 and the only reasonable inference is that they did dispense with his further cross-examination. It has been represented before me that they had a real grievance in the matter. I cannot believe it. I can only suppose that at a very late stage they have trumped up a sham grievance because some one has discovered that the Magistrate omitted to record the fact that they dispensed with the further cross-examination of P. W. No. 7. I find that the trial was not vitiated by any failure to give the accused an opportunity to cross-examine P. W. No. 7 after the charge was framed.
4. Then it was contended before the Sessions Judge that the trial was vitiated by the fact that D. W. No. 10 was examined on a day on which accused No. 1 was absent. The learned Sessions Judge has expressed no opinion on this contention. Prosecution Witness No. 10 gave no evidence which was, or could be, used against accused. At a later date accused No. 1 put in a statement that he did not wish to examine D. W. No. 10. In those circumstances the examination of D. W. No. 10 in the absence of accused No. 1 affords accused No. 1 no grievance nor does it vitiate the trial.
5. It has been urged for the accused before me that the Magistrate acted improperly in refusing to summon two additional witnesses, Sir Annamalai Chettiar and Murugappa Chettiar, when the accused applied for him on 20th April, 1928. The learned Sessions Judge is of opinion that this refusal did not vitiate the trial. In that he is clearly right. But, Mr. Mockett for the accused has urged that the failure of the Magistrate to summon these two witnesses provides an additional reason for allowing the order for the re-trial of the case to stand. The accused put in their list of defence witnesses No. 21 in number, on 29th. November, 1926. Nearly 9 months later, in August, 1927, accused No. 1 applied for the issue of summonses to an Inspector of the Criminal Investigation Department in Rangoon and to another witness to prove that Sir Annamalai Chettiar had engineered false cases against accused No. 1 in Burma, from which accused No. 1 hoped it would be inferred that this was another false case for which Sir Annamalai Chettiar was responsible. The Magistrate refused to summon the additional defence witnesses. Eventually this Court ordered in March, 1928, (Criminal Miscellaneous Petition No. 137 of 1928) that the Inspector should be summoned to appear and to produce certain telegrams. The Inspector appeared and was examined as D. W. No. 13 on 25th April, 1923. On 26th April, 1928, accused No. 1 applied that Sir Annamalai Chettiar and Murugappa Chetty might be summoned as additional defence witnesses. That application the Magistrate dismissed on 26th April, 1928, just before pronouncing judgment in the case. It was represented to the Magistrate, and it has been represented to me, that these witnesses were essential to prove the telegrams which the Inspector was to produce and, therefore, they should have been summoned as they were within the Magistrate's jurisdiction. But accused No. 1, if he really wished to use the telegrams, must have known months earlier that the Inspector could not prove them and that their additional witnesses were necessary. Yet, though the case was prolonged in such an extraordinary way, he made no application that they should be summoned until 20th April, 1928. That alone was a sufficient reason for refusing to summon them. I may add that the telegrams have been shown to me.
6. Though it may be inferred from them that Sir Annamalai Chettiar and Murugappa Chetty took some interest in some case or cases against accused No. 1, they do not show that either of those proposed witnesses was responsible for the case or cases. Even if it assumed that they refer to the case against accused No. 1 in Burma, which have been found to be false, they cannot show that either Sir Annamalai Chettiar and Murugappa Chetty has had anything to do with this case. It has been represented to me by Mr. Mockett that accused No. l's contention has been all along that this is a false case brought against him at the instance of Sir Annamalai Chettiar. But he did not tell the lower Court that when he was examined in the course of the trial. None of the defence witnesses examined makes out any connection between Sir Annamalai Chettiar and this case. There is no evidence that any of the prosecution witnesses is under his influence, nor was any suggestion of that made to them in cross-examination, not even to P. W. No. 2 who became hostile to the prosecution. In those circumstances evidence to show that Sir Annamalai Chettiar, had anything to do with false cases against accused No. 1, in Burma, even if that could be shown by the telegrams produced, would be irrelevant in this case. The Magistrate was quite right in refusing to summon additional witnesses to prove these telegrams. It was not improper that he wanted until D. W. No. 13 had been examined on 25th April, 1928, as directed by this Court, and had produced the telegram before he made an order on accused No. l's application, of 20th April, 1928, regarding these additional witnesses. But it would have been better if he had made his order on 25th April instead of waiting until he was ready to pronounce judgment, next day,
7. Mr. Mockett has appealed to me not to interfere in revision with the Sessions Judge's order for re-trial, which he urges would be unusual and improper. It is curious that the accused should be so anxious to be tried again before their appeals have been heard in full. In my opinion now that I have found that the trial was not vitiated by illegalities, as suggested, it would be improper to allow more public time to be spent on trying this case, which has already been so unduly protracted instead of having the appeals heard and disposed of in the ordinary way. The Sessions Judge's order setting aside the convictions and sentences and directing the case to be re-tried is reversed. The records will be returned to him. He is directed to hear the appeals in full and to dispose of them with the least possible delay.