PRAN GOBINDA ROY Vs. BIRENDRA CH ROY

JUDGEMENT

(1.) THE two accused petitioners in the present case were charged by Shri B.B. Dutta, Magistrate 1st Class, Udaipur under Sections 448/380, I.P.C. on 11 -5 -51 on a charge sheet submitted by the Police. They pleaded not guilty to the charge and wished to further cross -examine the complainant and other prosecution witnesses in the case. The Magistrate adjourned the case for further hearing on 26 -5 -51 and ordered the prosecuting Sub -Inspector to produce the above P.Ws. for the purpose.

(2.) ON that date, only the complainant and one P.W. was present. The accused persons objected to cross -examine them in part. The prosecuting Sub -Inspector also applied for permission to produce the remaining P.Ws. on the next date of hearing. The case was adjourned to 15 -6 -51. The same process happened on the next 2/3 hearings. On 24 -7 -51 the complainant with 4 P. Ws. was present. The prosecution promised to produce the remaining 4 P.Ws. on a subsequent hearing. The accused petitioned that they would be prejudiced if only 4 out of 9 P.Ws. were cross -examined on that date and further prayed that all the prosecution witnesses might be directed to attend on one date for re -cross -examination. This followed by an order of the trial Magistrate which runs as follows : "It is not possible to produce all the witnesses in a day. The prosecution has filed a petition to produce the remaining witnesses tomorrow. The defence party has refused to cross -examine the witnesses when the complainant was in the witness -box. Adjourn the case. Let the defence party pay Rs. 20/ -(twenty) as adjournment cost. Inform Pleader."

(3.) IT is against the above order that the 2 accused made this motion in the Court of Shri Umadas Gupta, Sessions Judge who has referred the case to this Court under Section 438, Criminal Procedure Code with a recommendation that the order of costs passed by the Magistrate is bad in law. The learned Sessions Judge has also recommended that the Magistrate should be directed to order all the prosecution witnesses to attend on the same date for cross -examination.