RAMKRISHNA GOCHHIKAR Vs. GADHADHAR PUJAPANDA

JUDGEMENT

(1.) THE accused persons are the petitioners The revision arises under the following circumstances.

(2.) A complaint was filed on 11-11-1963 under Ss 323 and 123/34 I. P. C. Cognizance was taken on the same date, and the ease was posted to 16-12-1963 for appearance of the accused Some of the prosecution witnesses were examined and cross-examined before charge on 5-5-1964 and 5-0-1904. A charge was framed on 22-11-1964 (Sic) On 12-9-64 the prosecution witnesses were crossexamined after charge. On 24-11-64 the doctor was examined, cross-examined and discharged On 11-12-64 the accused was examined under Section 342 and 31-12-64 was fixed for the defence In the meanwhile on 21 12-64 the petitioners filed an application under Section 257. Cr P C. for summoning the prosecution witnesses for further cross-examination and the Magistrate directed the petition to he put up on 4-1-65 for consideration On that day he allowed the petition of the accused and directed the prosecution witnesses to he summoned for cross-examination on 27-1-65, and the accused persons were directed to deposit the cost of the witnesses As against this order, the complainant filed a revision petition (Cr. Revision No 4/65) before the Additional District Magistrate, Puri. The additional District Magistrate (Judicial), Puri, after hearing the learned counsel for the parties disposed of the application saying:

(3.) THERE is no dispute over the fact that the trial relates to a warrant case instituted on a private complaint. In such cases the accused has 3 opportunities available to him to cross-examine the prosecution witnesses; (i) At the first instance when the prosecution witnesses were examined under Section 252 (1)and before a charge is framed; (ii) After the charge is framed, the accused gets a second opportunity under Section 256 when such prosecution witnesses as required by the accused to be recalled for purposes of cross-examination and reexamination if any, and then they shall be discharged. The remaining witnesses for the prosecution shall next be examined, cross-examined and also be discharged. The accused shall then he called upon to enter upon his defence and produce his evidence. As a general rule the cross-examination of a witness is to be made immediately after his examination-in-chief, but exception to the general rule has been made in cases of trial of warrant cases where the accused is entitled to defer the examination until after the framing of the charge This right to cross-examine a witness after charge is framed is an absolute right and the omission to give the accused the benefit of that right would vitiate the whole proceeding and the fact that the witnesses were once cross-examined by the accused before the charge is of no avail. As is clear from the provision of Section 256 that after the examination and cross-examination of the prosecution witnesses the accused then be called upon to enter upon his defence. Then comes (iii) the third stage when section 257 comes into play. Section 257 lays down the procedure for issue of process for compelling the production of evidence at the instance of the accused for the purpose of his defence Under the provisions of that Section the Magistrate has a duty to issue process to compel the attendance of witnesses named by the accused except where the Court considers that the object for making such process is to cause vexation, delay or to defeat the ends of justice The proviso to Section 257 however, makes it clear that where the accused had cross examined or had the opportunity of cross-examining any witness after the charge is framed, the attendance of such witnesses shall not be compelled under the section unless the magistrate is satisfied that it is necessary for the ends of justice that such process should be issued Thus, the accused in such cases has no absolute and unfettered right to ask the Court to summon the prosecution witnesses for cross examination as under Section 256, Cr P C The Court, however, is left with the discretion whether to issue process of not in respect of witness whom the accused cross-examined or had the opportunity to cross-examine In the present case, it is not disputed that the prosecution witnesses were cross-examined before and after the charge. The only grievance of the accused is that they could not furnish necessary materials to their counsel for effective cross-examination of the prosecution witnesses At one stage, the trial Court conceded to that request and permitted them to summon the prosecution witnesses at the cost of the accused. The complainant, however, challenged this order of the Magistrate permitting the accused to cross-examine the prosecution witnesses under Section 257 Cr. P. C. before the Additional District Magistrate (Judicial ). As appears from the order of the Additional District Magistrate, he also endorsed the the view taken by the trial court for issuing process against the prosecution witnesses for examination by the defence as would appear from the order referred to above. The learned Additional district Magistrate read the petition of the accused dated 21-1-64 as one where the accused persons wanted to examine the prosecution witnesses already cross-examined as defence witnesses The learned counsel for the defence appears to have accepted that position before the Additional District Magistrate. When the records were sent to the trial Court, the accused persons however insisted that those witnesses should bo summoned as prosecution witnesses and not as defence witnesses and thus refused to take further steps in the matter and took several adjournments on me ground or other In the eve of law it makes no difference whether they are summoned in one way or the other, so far as the nature of their evidence is concerned. When a prosecution witness is summoned under Section 257 at the instance of the accused, he dues not thereby lose his character as a prosecution witness. The mere fact also that the accused was compelled to I real the prosecution witnesses as his own, will not make any change in the legal position for the purpose of Section 257, see Sheo Prakash Singh v. W. D. Rowling. (1901) ILR 28 Cal 594. This view of the Calcutta High Court was followed by the madras High Court in a case reported in 23 Cr. LJ. . 192 : (AIR 1922 Mad 32)Venku Reddy v. Emperor.