Prinsep and Stephen, JJ.
1. There are two points upon which this Rule was granted--first, that the conviction and sentence under Section 411 of the Penal Code should be set aside on the ground that the evidence disclosed the commission of an offence under Section 489 (c) of the Penal Code, as recently amended, an offence triable exclusively by a Court of Session; and next, that the petitioner was entitled to cross-examine the Inspector who had been called and examined as a witness by the Court. On the first point we are of opinion that the rule should be discharged. Offences under Sections 411 and 489 (c) are distinct offences and. therefore can be separately tried. Moreover, the offence under Section 411 was, under the facts found, committed before tin other offence alleged to hare been also committed.
2. On the second ground, however, we think that the petitioner is entitled to an order in his favour. The District Magistrate attempts to justify his refusal to allow the accused to cross-examine; the Inspector on the ground that, inasmuch as the witness had been summoned for the defence, although he was not called by the defence, he must be regarded as such witness, and therefore the accused could not cross-examine his own witness. Now, although the accused did obtain a process for the attendance of the Inspector, before the Inspector's appearance he asked the Court to countermand the order for his attendance, but the Court refused to do so, and when the witness attended, he (the accused) declined to examine him. Under such circumstances the Inspector cannot be regarded as a witness for the defence. He was thereupon examined by the Court clearly as a witness who, the Court itself thought, was necessary for the proper decision of the case, and in this matter the Court exercised its own discretion. The case must therefore be returned, in order that the proceedings may be resumed from this point by an opportunity given to the petitioner to cross-examine the Inspector, and then, after consideration of the entire evidence in the case, the Court will proceed to pass its final order.