Ram Labhaya, J. - (1.) THIS is a composite petition under Sections 439 and 526, Criminal P. C. The relief claimed is that two orders dated 8 -4 -1953 and 13 -5 -1953 passed by the trial Magistrate be quashed and that the case be transferred from his Court to the Court of some other competent Magistrate for disposal according to law. The petitioner was the complainant in the trial Court. He instituted a complaint under Section 406 against Sohanlal Seraogi, the accused Opposite Party before us.
(2.) THE complaint was lodged on 20 -11 -1950. The accused was summoned and appeared on 20 -12 -1950. On 5 -5 -1952 -3 prosecution witnesses were examined after no less than 4 adjournments. The case was adjourned again 3 times and on 7th August the complainant and one more prosecution witness were examined. It was on this date that the charge was framed. The accused pleaded not guilty. The case was fixed for cross -examination of prosecution witnesses on 2 -9 -1952. On 6th October complainant was present. But his witnesses were not present. He prayed for time and the case was adjourned to 3 -11 -1952. On this date adjournment was prayed for on behalf of the accused. This was allowed. The case was adjourned to 24 -11 -1952, on which date the complainant again prayed for an adjournment, as Matilal one of his witnesses was ill. The case was adjourned to 15th December. On this date 2 prosecution witnesses were cross -examined and the case was adjourned to 22 -1 -1953 for cross -examination of the remaining witnesses. On 22nd January the complainant again asked for an adjournment as his witnesses from Gauhati had not turned up. The case was adjourned to 18 -2 -1953. On 18th February the complainant again asked for time as the mother of one of his witnesses had died. The case was adjourned to 8 -4 -1953. On this date as well as on the 3 previous occasions the learned Magistrate was mechanically repeating the direction that no more time shall be allowed. On 8th April the complainant himself was absent. Someone on his behalf moved the Court for adjournment as a prosecution witness who had gone to his native place had not come back. The petition was rejected. But the case was adjourned on the request of the counsel for the accused to 13 -5 -1953 for statement of the accused and his defence. On 13 -5 -1953 the accused appeared. The complainant was present but he did not produce his witnesses for cross -examination. The learned Magistrate ordered that their depositions be expunged. He recorded the statement of the accused who declined to produce any defence. At this stage according to the order dated 13 -5 -1953 another petition was put in on behalf of the complainant for a further adjournment. There was also the prayer that a warrant be issued for P. W. 4 who was a very material witness. The learned Magistrate rejected the petition in view of the order which he had already passed by which the depositions of 4 prosecution witnesses had been ordered to be expunged. The case was fixed for arguments and orders on 25 -5 -1953. Before this date the complainant moved the Additional District Magistrate under Section 528 read with Sections 435/436, Criminal P. C. He called for a report from the trial Magistrate and on receipt of it, rejected the petition. The complainant then moved the trial Magistrate for time to apply to this Court for transfer of the case under Section 526 to some other Court. Time was allowed to him and as a result he has put in the petition now before us. The learned Counsel for the petitioner has contended that the order of 13 -5 -1953 expunging the depositions of 4 prosecution witnesses from the record is opposed to the mandatory provisions of the Code. The order being obviously illegal is unsustainable. He has therefore argued for its reversal and has stated that if this order is reversed and the learned Magistrate directed to proceed according to law, he would not Insist on the transfer of the case from his Court to the Court of any other Magistrate, to avoid delay, though there would be ample legal justification for a transfer of the case also.
(3.) HIS contention in regard to the illegality of the order of 13th May is based on the provisions contained in Section 256, Criminal P. C. He points out that Section 256 casts an obligation on the Magistrate to ask the accused to state whether he wishes to cross -examine any and if so which of the witnesses for the prosecution whose evidence has been taken. If he expresses his wish to cross -examine any witnesses, those witnesses have to be recalled and they can be discharged after cross -examination and re -examination, if any. It is pointed out that the accused was not asked, nor did he state that he wanted to cross -examine any witnesses and it is urged that even if it is assumed that the accused wanted to cross -examine all witnesses, they had to be recalled and resummoned in the circumstances of this case. The obligation under Section 256 was entirely on the Court and the failure of the complainant to produce the witnesses did not absolve the Court from its responsibility.;