N.C. Talukdar, J.
1. This Rule is against an order dated 14th July, 1967, passed by Shri Amitabha Dutta, Additional Sessions Judge, 24-Parganas, in Criminal Motion No. 88 of 1967 refusing to make a reference to this Court under Section 438 of the Code of Criminal Procedure against an order dated 4th May. 1867, passed by Sri D.K. Roy, Magistrate, 1st Class, Barrackpore, in Case No. C 2119 of 1964/T. 518/65 permitting the accused-opposite party to examine two prosecution witnesses as defence witnesses in connection with the case pending under Section 279 of the Indian Penal Code.
2. The fasts leading on to the present Rule are short and simple. The complainant-petitioner's daughter Kumari Monika Trivedi aged about 7 years was run over by the accused opposite party's motor car No. WBA 1600 on the 26th October, 1963 at Panihati. It was the Nabami Puja day. The prosecution alleges that the car was being driven rashly and negligently and while attempting to overtake a lorry in front of the said car it swerved to the right of the road and came down from the metalled portion of the road to the kutcha portion of the road dashing thereby against the girl who fell down unconscious and was removed to hospital. The occurrence had taken place at about 5-30 p. m. The girl was taken to the Sagar Dutta Hospital where she was given first aid and then she was sent to the-Calcutta Medical College Hospital where she remained confined for a considerable period of time. The case thereafter has bad a chequered history. The police started a case against the accused but the accused was discharged after a final report on 25-4-64. The instant case thereafter was filed by the complainant. petitioner under Section 279/338 of the Indian Penal Code and after a judicial enquiry summons was issued under Section 279 of the Indian Penal Code and the present case was started and tried in the Court of Shri D.K. Roy, Magistrate, 1st Class, Barrackpore. In course of the trial, three witnesses were examined, cross-examined and discharged on 27-7-66 including P. Ws. 2 and 3 Nakul and Bholanath. Thereafter on 10-1-67 the accused.opposite party was examined under Section 342 of the Code of Criminal Procedure. At that stage the defence filed an application for recalling P. Ws. 2 and 3 for further cross-examination. The said petition was rejected and the trying Magistrate fixed 3-3-67 for defence witnesses and arguments. On 3.8.67 while rejecting the prayer filed on behalf of defence for time, the trying Magistrate observed that the procedure in the present case was summons procedure whereunder the defence was not entitled to cross-examine the prosecution witnesses later. The witnesses having been discharged, the trying Magistrate held that such a direction to allow them to be examined as defence witnesses would prejudice the complainant. An application in revision, however, was taken against the said order before the Sessions Judge who was pleased to direst the trying Magistrate to proceed with the case in the light of the observations made by him holding inter alia that the trying Magistrate should allow the two prosecution witnesses to be examined as defence witnesses. The matter came back to the trying Magistrate who thereafter took the unusual step of seeking a verbal clarification of the order of the Sessions Judge from the Sessions Judge himself. It is passing strange that a Magistrate in his enthusiasm would go to that extent. However, the trying Magistrate after being satisfied with the clarification of the order dated 18th April, 1967. from the Sessions Judge, passed his impugned order dated 4th May, 1967. For the purpose of this case, however, I need not pinpoint the impropriety of the aforesaid procedure and leave it at that. The trying Magistrate thereafter in the light of the observations made by the Sessions Judge ordered on 4-5-67 inter alia as follows:
Accordingly, the matter is settled to 5-7-67 for D.Ws. and argument. Accused as before.
A motion was taken from the said order to the Sessions Judge for making a reference to this Court under Section 488 of the Criminal P. C. and the same was rejected. These orders have been impugned and form the subject-matter of the present Rule.
3. Mr. Kalipada Trivedi who appeared in person has submitted in the first place that the procedure adopted by the trying Magistrate is a procedure which is unknown to law, vitiating the proceedings thereby. Mr. Trivedi contended in the second place that, in any event, the impugned order is an improper order prejudicing the complainant-petitioner very much.
4. Mr. J.M. Binerjee, Advocate, appearing on behalf of the State has supported the Rule and has submitted that even though the direction as ultimately given by the trying Magistrate, permitting the accused-opposite party to examine two of the prosecution witnesses as defence witnesses, may not be per se illegal, but in the facts and circumstances of the case it was quite improper, causing prejudice to the complainant-petitioner. Mr. Banerjee has submitted in this context that it is pertinent to consider that the procedure in question was summons prcoedure and it was incumbent upon the accused-opposite party to have cross-examined the prosecution witnesses immediately after the examination-in chief. That opportunity was open to the accused opposite party and in fact, was availed of by him so far back as on the 27th July, 1966. The application for recalling the said witnesses as defence witnesses is very much belated and is not ultimately justified by the facts and circumstances of the case. Mr. Banerjee has in this context referred to the case of Kishori Lal v. Chunni Lal (1908) 18 Cal W N (P C) 870 and pinpointed the observations of Lord Atkinson who delivered the judgment of the Court at p. 874 as follows:
As to this last matter, it would appear from the judgment of the High Court that in India it is one of the artifices of a weak and somewhat paltry kind of advocacy for each litigant to cause his opponent to be summoned as a witness, with the design that each party shall be forced to produce the opponent so summoned as a witness, and thus give the counsel for each litigant the opportunity of cross-examining his own client. It is a practice which their Lordships cannot help thinking all judicial tribunals ought to set themselves to render as abortive as it is objectionable. It ought never to be permitted in the result to embarrass judicial investigation as it has done in this instance.
While respectfully agreeing with the observations made by their Lordships of the Judicial Committee, I find further that the facts here are somewhat different as in the instant case the persons who are sought to be examined as defence witnesses are the prosecution witnesses themselves and not merely the parties to the proceeding.
5. Nobody appeared on behalf of the accused-opposite party.
6. Having heard the learned Advocate appearing on behalf of the respective parties and on going through the record I find that there is considerable force behind the submissions of Mr, Trivedi, as supported by Mr. J.M. Banerjee appearing on behalf of the State. I will not go to the length of holding that the procedure that was ultimately adopted by the trying Magistrate on the second occasion, namely, on 4-5-67 is a procedure which is per se illegal but in the facts and circumstances of the present case the said order is ultimately improper. A reference to the order-sheet would show that in this case where summons procecedure was being followed, all the three prosecution witnesses were examined, cross, examined and discharged on the 27th July, 1966. It was only on 10-1-67, very much after 27-7-66, that the defence could file a petition for recalling two of the prosecution witnesses for further cross-examination. The impugned order as passed on the 4th May, 1967, by the trying Magistrate allowing two of the prosecution witnesses as prayed for namely, P. Ws. 2 and 3 to be examined as defence witnesses is therefore, an order which is not proper and sustainable. The matter has dragged on unnecessarily and unreasonably for quite a long time and instead of creating unnecessary clouds over the points at issue which are very short and simple, it is expedient in the interest of justice that the matter should be determined at the earliest opportunity. The prosecution is as much a limb of the Court as the defence is and justice demands that equal opportunities should be given to both and none should be unreasonably prejudiced.
7. In the result, I make the Rule absolute; set aside the impugned orders and direct that the matter may go back to the Court below for being tried in accordance with law and expeditiously.
8. The records are to go down as early as possible.