- (1.) V. N. Mehrotra, J. Heard counsel for the revisionist at the admission stage. The revision is being disposed of finally as it is not necessary to issue notice in the matter.
(2.) IT is not disputed that the revisionist was facing trial in a case under Section 25 of the Indian Arms Act (Criminal Case No. 1216 of 1988 ). IT is also not disputed that the revisionist was in Jail. When some of the witnesses for the prosecution appeared in the court of Magistrate concerned, an application was moved by the accused revisionist for adjournment on 19. 5. 88 praying that the case be adjourned so that he may engage a counsel. He also mentioned that as he was in jail and his brother was also in jail, he could not appoint any counsel. This application was, however, rejected by the Magistrate con cerned. He recorded the statement of two witnesses on that date. IT was also mentioned that there was no cross-examination on behalf of the accused revisionist. Subsequently on 14. 9. 1988, the accused moved an application praying that he has no means to engage a counsel and he was in jail, hence services of a counsel be provided to him at the expense of the State Government. This application was allowed by the Magistrate in whose court the case was pending. However, it appears that even after this order, the service of any counsel was not provided to the accused. Later on, the accused moved an application on 10. 3. 1989 mentioning that he has now engaged a counsel and as no counsel was provided earlier to defend him, the witnesses could not be cross-examined, hence the witnesses be recalled for cross- examination. The Magistrate, however, rejected that application men tioning that sufficient opportunity has already been granted to the accused. A report was called from the Magistrate concerned asking him to give the circumstances in which the services of a counsel were not provided to the accused though an order to the effect was passed. The learned Magistrate in his report dated 4. 5. 89 mentioned that the order allowing the application for appointment of the counsel to defend the accused was not within his knowledge. I have heard the learned counsel for the revisionist and considered the material on record. It is obvious in this case that though the accused-revisionist was in jail and he was not represented by any counsel yet the learned Magistrate in whose court the matter was pending, did not ask the accused whether he wanted to be defended by a counsel to be appointed at the expense of the State Government. When the accused moved an applica tion for adjournment on 19. 5. 88 that he could not engage a counsel, that application was rejected. Though, subsequently, the Magistrate allowed the application for providing the service of Amicus Curie to the accused. Strangely, no counsel was provided to the accused inspite of the order. As mentioned earlier, the accused could not cross-examine the prosecution witnesses in the absence of any counsel to defend him. It is obvious that the learned Magistrate did not pay proper attention to the prayer by the accused to recall the witnesses for cross- examination by the counsel subsequently engaged by him. Obviously, the order by the learned Magistrate was not proper or just.
(3.) IN the circumstances, this revision is allowed. The order by the learned Magistrate dated 15. 3. 89 is set aside. As the accused has now engaged a counsel, the learned Magistrate shall recall the prosecution witnesses examined for cross-examination and thereafter proceed further with the case in accordance with law. Copy of this order may be given to the learned counsel for the applicant on payment of usual charges within three days. Appeal allowed. .;