1. In this case we granted a Rule upon the Chief Presidency Magistrate to show cause why an order of the Additional Presidency Magistrate refusing the prayer of the accused to be permitted through his counsel to cross-examine certain prosecution witnesses then present in Court before cross-examination of the complainant should not be set aside.
2. The petitioner is charged with an offence punishable under Section 406, I.P.C. The stage which had been reached when the incidents which are the subject-matter of this application occurred was that the prosecution witnesses had been examined in chief and charges had been framed. It appears that the learned Magistrate on 27th September directed the petitioner's pleader to give to the prosecution pleader the names of the prosecution witnesses who had already been examined in chief and whose attendance he required for cross-examination on 31st October. The petitioner's pleader gave the names of 11 out of 14 prosecution witnesses, but the complainant was one of the three witnesses whose name was given. On 31st October some of the witnesses whose names had been given by the defence pleader were present in Court as was also the complainant. The Magistrate on that occasion, for reasons which he has given, was not disposed to permit the witnesses to be cross-examined in the order in which the accused desired. On the contrary, he insisted on the cross-examination of the complainant being taken first. The learned Counsel appearing for the petitioner was willing to cross-examine the complainant on that date provided he was allowed to cross-examine the other witnesses then present before cross-examining the complainant. This proposed arrangement however was not allowed by the Magistrate. The learned Counsel stated that he had good reasons for wishing to postpone the cross-examination of the complainant until the other witnesses had been cross-examined but that if he informed the Court what those reasons were he would prejudice his client's case. Learned counsel appearing for the petitioner maintains that the defence has an absolute right to insist that the prosecution witnesses in a warrant case should be cross-examined in the order which the defence counsel desires. The learned advocate who appears for the Crown has directed our attention to Section 135, Evidence Act, which states:
The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law by the discretion of the Court.
3. He has further pointed out that Section 256, Criminal P.C, which deals with the procedure to be followed by the defence in a warrant case contains no provisions as to the order in which the prosecution witnesses are to be cross-examined and does not confer any such right upon the defence as is claimed by Mr. Basu. Mr. Basu states that he is able to say from his own experience and from information given him by counsel of extensive experience in the Presidency Magistrates' Courts that it is the practice of the Court always to permit the defence to cross-examine the prosecution witnesses in the order it wishes. We do not feel called upon to decide whether in fact there is a practice having the force of law by which the discretion of the Court which is prima facie conferred by Section 135, is controlled in the Presidency Magistrates's Courts or in the Courts of Magistrates generally. It is sufficient for the purpose of this case if we deal with the application on its merits.
4. We have read the explanations submitted to this Court by both the trying and the Chief Presidency Magistrates. It is to be noted that on 27th October it clearly did not appear to the learned trying Magistrate that there was anything in the circumstances of the case which rendered it undesirable for defence to cross-examine certain prosecution witnesses before the cross-examination of the complainant. We therefore are not disposed to attach much importance to the statement of the trying Magistrate in his explanation to the Chief Presidency Magistrate that the cross-examination of the complainant before the others was necessary for a clear and definite understanding of the defence case. What apparently weighed with the learned Magistrate was the fact that on 19th August it was found necessary to adjourn the case until the 16th September owing to the fact that the complainant was suffering from angina pectoris. It appears that the Magistrate not unnaturally thought on 31st October that as the complainant was present it was desirable to take the opportunity of having him cross-examined at once thereby avoiding the risk of the proceedings being again held up owing to the complainant's state of health. In our opinion, this reason was not sufficient to justify the Magistrate in refusing to accede to the request of the defence counsel who asserted that the defence would be embarrassed unless the cross-examination of the other witnesses preceded that of the complainant. We have made inquiry of Mr. Basu who tells us that out of 14 witnesses there are eight whom he wishes to cross-examine before he cross-examines the complainant, and that after these eight witnesses have been cross-examined he will have no objection to cross-examining the complainant. He also assures us that the cross-examination of these eight witnesses will not take more than two and a half hours. On this assurance we think that if, as is not admitted by the petitioner, the Magistrate has a discretion in the matter, he should exercise it in the petitioner's favour.
5. We therefore set aside the order complained of, and direct that the defence be permitted to cross-examine the witnesses in the order that they desire subject to the undertaking by Mr. Basu that he will have no objection to cross-examine the complainant after 8 other prosecution witnesses have been cross-examined.
6. The Rule is made absolute.