Newbould and Ghose, JJ.
1. This Rule is granted on three grounds, and we hold that it must be made absolute on the fifth ground and a re-trial ordered. It is unnecessary, therefore, to deal with the other two grounds.
2. The fifth ground is based on the fact that a certain witness, Jogendra Lal Chowdhury, was examined in Calcutta on commission. The accused, petitioners before us, filed no cross-interrogatories, and he was not then cross-examined. Subsequently he went to Chittagong, where the trial look place, and the accused applied to the Magistrate for him to be summoned for cross-examination. On this petition the Magistrate passed no definite order and he was not summoned. Having regard to the express provisions of Section 257 of the Criminal Procedure Code we hold that this was a serious illegality on the part of the Magistrate. The accused, even after he has entered upon his defence, is entitled to have the prosecution witnesses summoned for cross-examination, unless the Magistrate considers that such application should be refused on the ground that it was made for the purpose of vexation or delay or for defeating the ends of justice. If the Magistrate does so consider, the section is imperative that such ground shall be recorded by him in writing. The Magistrate having failed to comply with this provision of law, we hold that this was an illegality which vitiated the trial. We are informed that the Magistrate who tried the case has left Chittagong. We are also informed that Jogendra Lal Chowdhury is now dead. But this does not affect the illegality of the Magistrate's order.
3. We set aside the conviction and sentence passed on the accused, and direct that the fines, if paid, be refunded. The petitioners will be re-tried according to law.