Jagmohan Lal Sinha, J. - (1.) THIS is an appeal against the judgment and order dated 12 -7 -68 passed by Sri J.L. Bhargava, Magistrate, 1st Class, Azamgarh acquitting the Respondents of the offences Under Sections 452 IPC, 147 IPC and 823 IPC read with Section 149 IPC.
(2.) THE facts leading to this appeal can briefly be stated as under. Salik Singh Appellant filed a complaint in the court of Judicial Magistrate on 21st February 1968 praying for the prosecution of the Respondents for the offences mentioned earlier. After the evidence Under Section 202 of the Code of Criminal Procedure had been recorded the O.Ps. were summoned to stand their trial for the said offences. The complainant examined Rajendra Nath Singh PW 1 and Ram Prasad PW 2 Under Section 252 of the Code of Criminal Procedure. Thereafter on 2nd July 68 all the five Respondents were examined by the learned Magistrate who framed charge against them of offences Under Sections 147 IPC, 452 IPC and 323 IPC. The case was then postponed to 12th July 68 for further cross -examination of the prosecution witnesses. On that date it appears that the case was called out but neither the complainant nor his witnesses turn up till 3.30 PM and the learned Magistrate therefore dismissed the complaint saying that he did not find an iota of evidence to connect the accused persons with the charge levelled against them. Feeling aggrieved against the aforesaid order the complainant has come up in appeal before this Court. 4 I have heard learned Counsel on either side and have also gone through the record of the case. 5. Learned Counsel for the Appellant urged that after the charge had been framed in the case it was the duty of the Magistrate to have summoned the prosecution witnesses for cross -examination and it was not open to the Magistrate to dismiss the case merely because he complainant and the witnesses were not present. 6. I have given my careful thought to the contention raised and I find that there is ample substance in it. In case Chiranji Lal v. Ram Swarup, 1942 AWR 336 the Magistrate after framing the charge fixed a date for the cross -examination of the witnesses. On that date neither the complainant nor his witnesses turned up. The Magistrate dismissed the complaint and acquitted the accused. The matter came up before this Court and it was observed: The subordinate Magistrate after framing a charge acquitted the accused because the complainant and his witnesses did not appear for cross examination. The trial Magistrate was obviously wrong and the reason why he made a mistake was that he did not realise the basic principle underlying criminal trials. Further on it was observed: The Magistrate should realize that the burden is upon him in the trial of warrant cases to discover from the complainant or otherwise what evidence is available and that a proper inquiry is made by him. If the case is compoundable and non cognizable, that is, if it is a minor case in which it may be said that the interest of the general public is subordinated to the interest of the person directly injured, it is open to a Magistrate to dismiss the complaint if the complainant does not appear before a charge is framed, but once the charge has been framed, or if the case is non compoundable and cognizable, it is the duty of the Magistrate in the interest of the general public to see whether an offence has been committed and to punish it if he thinks that the accused is guilty. 7. With the above observation this Court set aside the acquittal recorded in favour of the accused and remanded the case for fresh trial. 8. The point again came up for consideration before a Division Bench of this Court in case Sagiruddin v. Mst. Munni, 1949 AWR 294. In this case after the charge had been framed the case was postponed to another date for further cross examination. On that date the complainant and his witnesses were absent and at the request of the counsel, the case was adjourned to another date. On the adjourned date again the complainant was absent but his counsel applied for adjournment on the ground of illness. The trial court refused to adjourn the case and acquitted the accused. The complainant came up before this Court. After making a reference to the provisions contained in Section 247 Code of Criminal Procedure and to a number of cases this Court summed up as follows: We are, therefore, of the opinion that it is the Magistrate's duty to recall the prosecution witnesses for cross examination Under Section 256 of the Code. With the above observation this Court set aside the acquittal recorded in favour of the accused persons and remanded the case for fresh decision. 9. The matter further came up for consideration before this Court in case Mohammad Qasim v. Gokul Tewari, 1962 AWR 658 and it was held that when an accused expresses his desire to cross -examine the witnesses, who are examined before the framing of the charge, it is the duty of the Magistrate to recall the witnesses and discharge them only after their cross -examination and re -examination, if any. An identical view was expressed by Division Bench of Mysore High Court in case N.R. Murthy v. P.D. Narayan, AIR 1957 Mys 18. In that case a complaint was filed for the prosecution of the accused for the offence Under Section 323 IPC. Three witnesses were examined in support of the complaint and the case was then adjourned to 12 -12 -1955 for further cross -examination on which date the complainant and the prosecution witnesses were absent. The learned Magistrate acquitted the accused. The complainant went up in appeal before the High Court of Mysore and the court held: From a perusal of the order of the learned Magistrate it appears to us that the Magistrate is under an impression that it is the duty of the complainant to secure the witnesses For purposes of further cross examination and that on default on the part of the complainant in this behalf the accused is entitled to an acquittal. The Magistrate appears to be in error in this view. In a warrant case, after a charge is framed the complainant will be out of the picture and it is the duty of the court to secure such of the witnesses for the prosecution as are required by the accused for further cross -examination. This view is supported by the case reported in Raisingh Chamar v. Patja Chamar, AIR 1918 Nag. 76. Under such circumstances no duty is cast upon the complain -ant to secure the witnesses for the prosecution unless he had undertaken to produce them. The consensus of authority is thus clearly in support of the view that in warrant case the duty lies on the Magistrate to secure the attendance of the complainant and his witnesses for further cross -examination. In the instant case 12th July 1968 was the date fixed for further cross examination. The record does not show that the complainant had volunteered to bring his witnesses for further cross -examination. It was, the before, the duty of the Magistrate to summon the witnesses for further cross -examination that day. No such action was taken by the Magistrate. He was, therefore, clearly in error in having dismissed the complaint and in having acquitted the accused merely for the reason that the complainant and his witnesses did not turn up for further cross -examination. 10. Learned Counsel for the Respondent tried to argue that the evidence that had been examined by the Magistrate before the 'framing of a charge did not make out a case and therefore it would not be appropriate to send back the case for fresh trial. I am unable to agree. If there was no evidence to connect the Respondents with the charge levelled against them why did the Magistrate frame a charge. Further on a perusal of the evidence recorded before framing of the charge, I find that it cannot be said that no offence at all is made out on that evidence against any of the Respondents. Rajendra Nath (PW 1) explicitly stated that on the date and time of occurrence the Respondents abused the complainant's wife and then trespassed into the complainant's house and indicted beating to Salik and his wife inside that house. No cross -examination was at all made with Rajendra Nath. Salik (FW 2) also made an identical statement. It cannot, therefore, be accepted that no prima facie case was at all made out against any of the Respondents. 11. This appeal is, therefore, allowed. The order dated 12 -7 -1968 passed by the court below acquitting the Respondents is set aside and the case is sent back to ADM (J) Azamgarh for fresh trial by himself or by some other competent Magistrate to whom he may transfer the case except Sri J.L. Bhargava who has already expressed his opinion once.;