S.D.SINGH, J. - (1.) THERE is an application in revision against an order passed by Sri Laxaman Prasad, Magistrate first class of Lucknow dated 12th May, 1961, in a case pending in his Court under Section 420 of the Indian Penal Code.
(2.) THE case arises out of a complaint filed by the present applicant Mohammad Qasim against three persons Gokul Tewari, Mehrun Nisa and Mumtaz Begum. The prosecution examined five witnesses under Section 252 of the Code of Criminal Procedure, namely, Mohammad Qasim, Mohammad Raza, Kallu, J. N. Shukla and Abdul Aziz. Charge was thereafter framed by the learned Magistrate under Section 420 of the I. P. C. on 33rd February, 1961 and the accused having desired to cross -examine all the five witnesses, 10th March, 1961 was fixed for the cross -examination of these witnesses. The witnesses being absent on that date and the Courts having closed at 1.30 p.m., the case was adjourned to 24th March; on 24th March the case was adjourned to 7th April on payment of Rs. 5/ - as costs; on 7th April it was adjourned to 18th April on payment of Rs. 5/ - as costs again; on 18th April the case was adjourned to 27th April; on 27th April it was adjourned to 6th May on payment of Rs. 10/ - as costs and on 6th May it was adjourned to I2th May. Mohammad Qasim (P. W. 1) was cross -examined on 7th of April and Kallu (P. W. 3) and Abdul Aziz (P. W. 5) on 6th May. Other two witnesses Mohammad Raza (P. W. 2) and J. N. Shukla, who is a Reader in the Court of one of the Magistrates, (P. W. 4) remained to be cross -examined. As they were not present and were not produced by the complainant, the Magistrate passed the order on I2th May, 1961, against which order this revision has been filed. The Magistrate directed that the statements of the two witnesses, who have not been produced, or cross -examined, will be taken out of record and ignored in the disposal of the case. The applicant went up in revision against this order to the Sessions Judge, who dismissed the revision on 9th August, 1961, and hence this application in revision in this Court.
(3.) 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 these witnesses and discharge them only after their cross -examination and re -examination, if any. It was pointed in Saghir Uddin v. Mt. Munni, AIR 1949 All 428 that a duty is cast on the Magistrate to recall the prosecution witnesses for cross -examination as required by Section 256 and that the duty of procuring their attendance cannot be laid on the shoulders of the complainant. The same view has since then been taken by the Patna High Court in Kunj Behari v. Basdeo, AIR 1958 Patna 104 and the Court of Judicial Commissioner Tripura in Amulya Ranjan Pal v. Monoranjan Roy, AIR 1956 Tripura 2. Normally when the witnesses are examined under Section 252 of the Code of Criminal Procedure, the Magistrate should take personal cognizances from them for their appearance on a date to be fixed for the purpose of their corss -examination under Section 256 or to issue summons for the appearance of the witnesses for such date. In this particular case the Magistrate never considered the question of the duty that is thus cast upon him under Section 256 of the Code of Criminal Procedure for the summoning of witnesses without any burden being thrown on the shoulders of the applicant. The Sessions Judge has pointed out on the authority of AIR 1949 All 428 (supra), that the complainant undertook the duty of producing the witnesses for cross -examination. The whole of the order sheet of the case from 23rd February, 1961, to 6th May, 1961, was read over during the hearing of this revision. It is difficult to infer from any of the orders passed in between these dates that the complainant undertook to produce the witnesses himself, though even he appears to be labouring under the impression, as did the Magistrate, that it was his duty to summon the witnesses, and since the witnesses were not turning up on the dates fixed, the complainant was asking for adjournments one after the another and even paying costs for the same. The question regarding the summoning of the witnesses for cross -examination should have been considered on the very first date on which the charges were framed, i. e., on 23rd February, 1961, and the Magistrate should have decided on that date whether he was to summon the witnesses or if the responsibility for summoning them was being taken up by the complainant. The order passed on that date is altogether silent on this point. Even though the applicant did ask for time for producing the witnesses and even paid costs for adjournments which were granted, it is difficult to conclude on the basis of the orders which are recorded on the order sheet that he took himself the task of procuring the attendance of the witnesses. The Magistrate was never prevented by any representation of the complainant to summon the witnesses of his own accord, which is what the Magistrate should have done.;