Prinsep and Stanley, JJ.
1. Before the case for the prosecution had closed and the accused had been called upon to enter on his defence the accused applied to the Magistrate to re-summon the witnesses for the prosecution to cross-examine them. The Magistrate refused the application in these terms: 'The prosecution witnesses have already been cross-examined at a reasonable length considering the importance of the case, and it is needless in my opinion to recall them Refused.'
2. Section 256 of the Code of Criminal Procedure gives the Magistrate no discretion in such a matter. The accused is entitled to have the witnesses recalled for purposes of cross-examination. Indeed, after a charge has been drawn up, it is the duty of the Magistrate to require the accused to state whether he wishes to cross-examine, and, if so, which of the witnesses for the prosecution whose evidence has been taken. The fact that there has been already some cross-examination, before the charge has been drawn up, does not affect this privilege. It is only after the accused has entered upon his defence that the Magistrate is given a discretion to refuse such an application, on the ground that it is made for the purpose of vexation or delay, or for defeating the ends of justice (section 257). An amendment of the previous law has been made by Section 254 for the purpose of protecting witnesses from the inconvenience of being required to attend a second time by enabling a Magistrate at any stage of the case to frame a charge in writing, and, if a cross-examination then takes place, it would be in the terms of Section 256, and then, unless there has been some amendment of the charge, a second cross-examination might be refused. But that is not the case before us.
3. The conviction and sentence must be set aside, and the fine, if paid, refunded. The trial must be re-opened and the witnesses, whom the accused desires to cross-examine, must be resummoned. It is unnecessary that in revision we should consider the merits of this case.