Das Gupta, J.
1. This Rule was obtained against an order of the learned Mag. of Alipore acquitting tinder Section 258, Cr. P. C., the opposite parties against whom a charge had been framed under Section 379, Penal Code, after which the learned Mag. passed the following order :
'To 6-3-50 for cross-examination of P. Ws. & further P. Ws. P. Ws. to give P. R. of Rs. 10 each. Accused as before.'
On 6-3-1950 neither the complainant nor the witnesses were present. No petition was filed on behalf of the complainant to explain this absence. The learned Mag. pointed out in his order of 6-6-1950, that the record of the case would show that the complainant did not take steps for summoning his witnesses for that dav. He held also that the evidence of the witnesses on the record could not be admissible under Section 33, Evidence Act, as there was nothing on the record to show that the witnesses were absent on one or other of the grounds mentioned in that section. He pointed out that the witnesses had not been tendered for cross-examination & even the lawyer for the complainant was absent & no reason had been given why they were absent, & finally he held that there being no evidence on record against the accused persons they were acquitted under Section 258, Cr. P. C.
2. A case was sought to be made before us that the reason why the complainant was not present with his witnesses on the 6th. March was due to a misunderstanding of the date & that they were under the misapprehension that the date fixed was not the 6th March but 16-3-1950. We are not satisfied that there was any such misunderstanding & we are not disposed to interfere with the order passed by the learned Mag. on that ground.
3. The question however remains whether when the complainant & his witnesses did not appear on the date fixed in spite of the fact that personal recognizance bonds had been taken from the witnesses it was the duty of the Mag. to take further steps for recalling them under the provisions of Section 256, Cr. P. C. The learned Mag. is apparently of the view that it was the duty of the complainant to produce those witnesses & as the complainant did not produce the witnesses & consequently the accused had no opportunity to cross-examine the witnesses, the evidence given in examination-in-chief could not be considered & it was in this view that he held that there was no evidence on the record.
4. In the present case, not only the complainant but other witnesses also were absent on the date fixed. A somewhat similar question came up for consideration before this Ct. in Nutbehari v. Saroda Prosad : AIR1933Cal358 . After charge had been framed, the case was adjourned for further hearing on the date fixed, neither complainant, nor accused appeared & the Mag. acquitted the accused under Section 258, Cr. P. C. The order was set aside by Pearson & Paterson JJ. who held that the Mag. had no such right.
5. It has been argued by Mr. Banerjee on behalf of the petnr. that after charge had been framed it was the duty of the Mag. to proceed in the way as laid down in Section 256, Cr. P. C. & himself recall the witnesses for cross-examination after ascertaining from the accused persons which of the witnesses they wanted to cross-examine. The relevant portion of Section 256, Cr. P. C. is in these words :
'If the accused refuses to plead, or does not plead, or claims to be tried, he shall be required to state, at the commencemnt of the next hearing of the case, or, if the Mag. for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, &, if so, which, of the witnesses for the prosecution whose evidence has been taken. If he says he does so wish, the witnesses named by him shall be recalled &, after cross-examination & re-examination (if any), they shall be discharged.'
6. It is to be noted that the duty that is cast on the Mag. to enquire from the accused whether he wishes to cross-examine any witness &, if so, which of the witnesses for the prosecution, is not conditional on the presence of the complainant, or any action taken by him. Once the charge has been framed, the duty is in terms on the Mag. whether the complainant wishes it or not, to ascertain from the accused persons whether he wishes to cross-examine any, & if so, which of the witnesses for the prosecution. This is to be done ordinarily at the commencement of the next hearing of the case but it may be done forthwith for reasons to be recorded in writing. After the accused has indicated what witnesses he wants to cross-examine, the 'witnesses named by him shall lie recalled'. It is worthy of notice that in the first portion of the section the duty is cast on the Mag. Is there any reason to think that when the section proceeds to say that 'the witnesses named by the accused shall be recalled', the duty of calling is cast on some other person In my judgment, if it was intended by the Legislature that not the Mag. who has ascertained from the accused what witnesses the accused wants to cross-examine, but the complainant, will have to produce those witnesses, it would have said so clearly in so many words. It is worth remembering that in an earlier section, viz., Section 252, Cr. P. C., the Legislature used the words :
'such Mag. shall proceed to hear the complainant (if any) & take all such evidence as may be produced in support of the prosecution.'
In my judgment the duty of recalling the witnesses whom the accused wants to cross-examine is cast by the law on the Mag. & the mere fact that the complainant has not taken steps in that matter does not absolve the Mag. from his duty to do so. It is worth noting that in this case the Mag. himself took the step of taking personal recognizance bonds from the witnesses. He does not however, appear, to have followed the procedure laid down in Section 256 of the Code. Apparently he assumed that the accused would want to cross-examine all the witnesses or at least he wanted to cross-examine all the witnesses or at least he wanted all the witnesses to be present on the next date so that they might be available if on that date the accused wished to cross-examine any of them.
7. The learned Mag., in my opinion, erred in law in holding that as the complainant had not produced the witnesses, nothing more had to be done by him & the evidence already on record had to be expunged. In my judgment, even if on 6-3-1950, the complainant & his witnesses were not present, the Mag. was bound to ask the accused person in the manner provided in Section 256 of the Code & if the accused wanted to cross-examine any of the witnesses, it was the Mag.'s duty to take steps & secure their presence. Before this was done, the Ct. was not entitled to hold that as the accused had not an opportunity of cross-examining the witnesses, the evidence on the record might be expunged & the accused acquitted. I am fortified in this view of the law by the decision in Nutbehari V. Sarada, : AIR1933Cal358 It may be pointed out that a similar view was also taken in the case of Saghir Uddin v. Mt. Munni, : AIR1949All428 Our attention was drawn by Mr. Mukherjee on behalf of the opposite party to a decision of this Ct. in the case of Sadek Mahammad v. Jyotish Chandra, : AIR1948Cal83 where it was laid down that when after a charge had been framed, the complainant & his witnesses were absent on the day fixed for the cross-examination, it was not proper to discharge the accused as there was no provision for discharge of the accused after charge had been framed & that the proper order to pass was
'as the prosecution witnesses are absent & cannot be cross-examined their evidence in examination in chief should be expunged & as there is no evidence in the case the accused is acquitted'.
The report does not indicate the circumstances under which in that case the witnesses were not present for cross-examination. It has also to be noticed that the question whether it was the duty of the Mag. to recall the witnesses or the duty of the complainant to produce them, for cross-examination, after the accused had indicated what witnesses he wanted to cross-examine, under the provisions of Section 256 of the Code, was not raised or considered in that case. It is to be noticed also that the attention of the learned Judges does not appear to have been drawn to the decision in Nutbehari v. Sarada, : AIR1933Cal358
8. My conclusion, therefore, is that the learned Mag. erred in law in passing an order of acquittal in the view that because the complainant had not produced the witnesses for cross-examination, the evidence given in examination-in-chief was bound to be expunged.
9. I would, therefore, set aside the order of acquittal & send the case back for retrial in accordance with law.
P.N. Mookerjee J.
10. I agree.