1. This is raferenoe by the learned Sessions Judge of Burdwan recommending that the conviction of the accused under Section 457 read with Section 380,Indian Penal Code, and the sentence of rigorons imprisonment for three months passed upon him be set aside on the ground that he was not allowed to summon witnesses for the prosecution to cross-examine them.
2. It appears that the witnesses for the prosecution were not cross-examined before the petitioner was called upon to enter upon his defense; he was tried summarily. But in trials under Chapter XXII, the procedure prescribed for warrant liases shall be followed in warrant cases. This was a warrant case. The accused, therefore, waa entitled to have process issued for compelling the attendance of witnesses for the prosecution for cross-examination and he applied accordingly to the trying Magistrate. The application was refused and the accused convicted and went (sic.) stated above.
3. The conviction and sentence passed upon him are accordingly set aside and we direct that the case he re-tried by some Magistrate other than the Magistarate who tried him.
4. The accused will continue on the same bail as before.