1. This rule was issued calling upon the Magistrate of the District to show cause why the conviction of, and sentence passed on, the petitioners should not be set aside, on the ground that the accused were not allowed by the Sub-Divisional Officer of Beguserai to cross-examine the witnesses for the prosecution, who were summoned for the 20th December, and who were present on that date, or why such other order should not be I made, as to this Court may appear fit and proper.
2. As we pointed out to the learned Advocate-General in the course of his arguments, in granting the rule we had in view the provisions of Section 257. We may observe at the very outset that, in our opinion, the work of this Court would be appreciably lightened, if the Subordinate Magistrates, in dealing with the law relating to the rights of accused persons, would construe it in a less technical spirit than they are sometimes accustomed to do. In the inferior Courts the right principle is occasionally reversed, and a person is presumed to be guilty the moment he is accused, and every attempt on his part to prove his innocence is regarded as vexatious. When the law vests in a Court a certain discretion, that discretion, in our opinion, should be exercised, so as not to give rise to any reasonable complaint of prejudice or bias.
3. What appears to have happened in this case is as follows: The witnesses for the prosecution were examined, and an application was made on behalf of the accused for an adjournment, so as to enable them to cross-examine by Council, who could not appear on the particular day fixed. The application was refused, and the accused were called upon to cross-examine the witnesses themselves, which they were not in a position to do. Subsequently, a day was fixed for taking the evidence for the defence, and the accused asked that the prosecution witnesses, who had been already examined, but whom they had no opportunity to cross examine, except as already mentioned, should be summoned and they be allowed to examine them. Those witnesses were summoned, by the Sub-Divisional Officer, and, when the Counsel for the accused proceeded to cross-examine them, as naturally he would, considering that they had deposed for the prosecution, in other words to put to them questions which ordinarily would not be put to the witnesses for the defence, he was admittedly not allowed to do so. The reason given in the explanation, as well as in the note of the Magistrate attached to the judgment, is that the witnesses had been cited as defence witnesses, and, as no sufficient reason was made out under Section 154 of the Evidence Act, it was within the Magistrate's discretion to disallow cross-examination.
4. In our opinion the mere fact that the accused had, under the circumstances already stated, been compelled to treat the witnesses for the prosecution as their own witnesses, does not change their character. The accused sought for an opportunity to cross-examine them; that was not allowed. They considered that, in cross-examination, they would be in a position to elicit facts, which would materially help their case. Under the circumstances we think that, although the accused were compelled to obtain their attendance as witnesses for the defence, they were really summoned under Section 257 'for the purpose of cross-examination,' and we, therefore, think the Magistrate was wrong in refusing to allow their cross-examination. To regard it other wise would be to make the procedure of the Courts a mere travesty of justice.
5. Under these circumstances, we are of opinion that the rule ought to be made absolute, and we accordingly make it absolute and set aside the conviction and sentences.
6. We are informed that the Magistrate, who tried this case, will not be in the district. The case must, therefore, go back to the District Magistrate, either to try it himself or to refer it for trial to any other Magistrate competent to try the same. The provisions of Section 350 of the Code of Criminal Procedure debar us from directing that the case should be proceeded with from the stage at which it was left on the 20th December. The trying Magistrate must proceed in accordance with that section.