1. In this case the accused have been convicted under Sections 363 and 367, I.P.C. and sentenced to long terms of imprisonment. It is not necessary to consider the various points which have been urged before us in appeal by the learned advocate appearing for them, as We think it enough if we refer to one objection which is to the effect that the learned Addl. Sessions Judge did not give sufficient opportunity to the accused to examine the witnesses for the defence. It appears from the record that before the Magistrate the accused had submitted presumably under Section 211, Criminal P.C. a list of 19 witnesses to be examined at the trial on their behalf. Before the prosecution case was closed the defence pleader on 13th March 1929 prayed for calling for certain records from the District Magistrate's room and for summoning three defence witnesses for the following day. The learned Judge ordered that the records should be called for and directed the District Magistrate to summon the witnesses for the following day. On the following day, that is, 19th March, apparently the witnesses did not come and the defence pleader put in a petition for adjournment of the case for a day to produce certain defence witnesses. The learned Judge dismissed the application on the ground that those witnesses would not prove relevant matters or any matter admissible in. evidence under the law, without allowing the accused to produce their witnesses and then deciding about the relevancy of their evidence. We think that the learned Judge should have in a serious case like the present allowed the accused an opportunity of adducing such evidence as they chose. If at the examination of the witnesses for the defence the learned Judge was of opinion that the statements made by them were not admissible or were not relevant in evidence he could rule them out. He did not exercise a proper discretion in refusing to examine the witnesses for the defence. Under Section 216, Criminal P.C., the Magistrate was bound to summon all the witnesses named by the accused for appearance before the Court of the Sessions Judge except those whose evidence was taken by the Magistrate himself or whom the Magistrate considers to have been included in the list for the purpose of delaying or defeating the ends of justice. We think that in this particular case the accused have a just grievance that they were not allowed to adduce evidence on their behalf.
2. We accordingly set aside the convictions and sentences passed by the learned Addl. Sessions Judge and direct that the accused be retried according to law. Every opportunity should be given to them to adduce evidence on behalf oft the defence either oral or documentary. If the learned Judge is of opinion that the evidence adduced by the accused is inadmissible or irrelevant, or that such evidence was adduced for the purpose of vexation or delay or to defeat the ends of justice, he can refuse to receive such evidence.
3. We direct that the accused be retried according to law. It will be in the discretion of the, Sessions Judge to allow bail to the accused pending their retrial.
4. Objection has been taken to the propriety of the charge framed on the authority of the decision in. Mafizaddi v. Emperor : AIR1927Cal644 . If it were necessary to decide the point, we would have had to examine the case, but as the case is to be retried, the Sessions Judge will do well to frame separate charges for kidnapping and abducting.