Greaves and Panton, JJ.
1. In this case a Rule was issued at the instance of the accused calling upon the Chief Presidency Magistrate to show cause why a certain order should not be set aside on ground No. 3 as stated in the petition. The accused were charged under Sections 120 B, 467 and 471 of the Indian Penal Code. Six witnesses were examined on behalf of the complainant on the 21st and 28th of May and on the 8th of June. On the 2nd July the complainant, who had already been partly examined, was farther examined The complainant was recalled on the 18th July and was examined, and on that date the accused applied before the Magistrate for permission to cross-examine the prosecution witnesses, and they filed a written application. The Magistrate directed the application to be filed, stating that he would consider the same after the prosecution had closed their case. On the 26th July witnesses Nos. 6 and 8 to 11 were recalled and examined by the prosecution, and, on the 1st August, one witness for the prosecution was examined. On that date the Magistrate passed the following order: 'I exercise my discretion under Section 347 of the Criminal Procedure Code, and I disallow any cross-examination here. I shall com mit this case to the Sessions on the next day of hearing.'
2. It is contended before us on behalf of the accused that the Magistrate had no right to adopt the course which he did, and that, inasmuch as the application to cross-examine the prosecution witnesses was made before he had decided to commit, and before he had framed the charges, the accused were entitled as of right to cross-examine the witnesses called on behalf of the prosecution. We have been referred to the case of Queen-Empress v. Sagal Samba Sajao (1893) I.L.R. 21 Calc. 642 which states the right of the accused before a charge has been framed to cross-examine the witnesses called on behalf of the prosecution previous to commitment. We have also been referred to the case of Phanindra Nath Mitra v. Emperor (1908) I.L.R. 36 Calc. 48, where it appears that the Magistrate had decided to commit before an application to cross-examine was made, and we have further been referred to the case of Fazarali v. Masaharulla (1911) 16 C L.J. 45, where it was held that, after a Magistrate had made up his mind to commit a case to the Court of Sessions but before the case for the prosecution closed, one witness for the prosecution yet remaining to be examined, the defence was entitled to cross-examine the prosecution witnesses. These cases, or some of them, have been referred to by the Magistrate in his explanation, but we think that it is clear from these cases that the Magistrate had no discretion in the matter, and that he was bound, under the circumstances of this case, and having regard to the fact that the application to cross-examine was made before the charge was framed and before the Magistrate had decided to commit the case to the Court of Sessions, to allow the accused to cross examine the prosecution witnesses.
3. In these circumstances, the Rule is made absolute, and the order of commitment to the Sessions, so far as the present petitioners are concerned, is set aside.
4. This order is made so far as the accused Nos. 3 and 4 who are applicants before us are concerned, and the matter will accordingly go back to the Magistrate in order that he may deal with it in accordance with the law.