D.B. Lal, J. - (1.) THIS criminal appeal is directed against the judgment of the Judicial Magistrate, First Class, Ballabgarh, acquitting Majesar Dass for the offences under Sections 323 and 504 of the Indian Penal Code, on the short ground that the complainant Smt. Pushpawanti was found absent on one of the dates fixed for the witnesses to be cross -examined under Section 258 of the then Code of Criminal Procedure. The facts giving rise to the present appeal may now briefly be stated.
(2.) A complaint was filed by Smt. Pushpawanti, alleging that her husband Sham Lai was tenant in the house of the accused and the latter wanted him to vacate that house. Accordingly on May 3, 1971, the accused Majesar Dass came and finding the lady alone in the house, hurled abuses upon her and also gave a beating to her with a stick. The incident was witnessed by Moti Singh, and a few others. In the complaint case, on the first date the complainant gave her statement and the Magistrate having found a prima facie case against the accused, summoned him for the two offences. Under Section 252 of the then Code the complainant produced her witnesses in support of the prosecution. It appears that some cross -examination was also conducted on behalf of the accused. However, under Section 254 of the Code a charge was framed and under Section 255 of Code of Criminal Procedure the plea of the accused was recorded. He pleaded not guilty of the charge. Thereafter, the Magistrate came to the stage of Section 256 Code of Criminal Procedure which runs as follows: 256. (1) If the accused refuses to plead, or does not plead or claims to be tried, he shall be required to state (at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith), whether he wishes to cross -examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. If he says, he does so wish, the witnesses named by him shall be recalled and, after cross -examination and re -examination (if any), they shall be discharged. The evidence of any remaining witnesses for the prosecution shall next be taken, and, after cross -examination and re -examination (if any), they also shall be discharged. The accused shall then be called upon to enter upon his defence and produce his evidence. (2) If the accused puts in any written statement, the Magistrate shall file it with the record. The order sheet written by the Magistrate dated December 14, 1973, does indicate that the case was adjourned to March 1, 1974 for cross -examination of the witnesses. The names of such witnesses were obviously pointed out by the accused for further cross -examination under Section 256 on March 1, 1974. The record of the Court of Magistrate indicates that the complainant Smt. Pushpawanti had appeared before the Chief Judicial Magistrate, Gurgaon and filed an application, on the back of which the learned Chief Judicial Magistrate, Gurgaon, indicated that the case was transferred to J.M., I.C., Ballabgarh and that she had to appear before that Court on March 16, 1974. It so happened that on March 1, 1974, the case was called in the Court of J.M. I.C. Ballabgarh and the complainant was obviously found absent on that date. The accused and his counsel were present and since no witnesses were available, the complainant's evidence was closed. Thereafter a date was fixed for the statement of the accused and on March 11, 1974, while the complainant was absent the statement of the accused was recorded and he was called upon to enter upon his defence. Since he did not produce any defence witness the defence was also closed. Thereafter, a date was fixed for arguments and the learned Magistrate observed in his judgment that the complainant having remained absent failed to produce the witnesses for cross -examination and as such the accused had no opportunity to cross -examine the witnesses. He referred to Section 257 of the Code of Criminal Procedure and held that the statements of the witnesses recorded on behalf of the complainant could not be read in evidence. It was found that no case was made out and the accused was acquitted. This order of the learned Magistrate is the subject -matter of the present appeal. Mr. K.D. Singh, the learned Counsel for the complainant -Appellant, referred to Sections 256 and 257 of the then Code of Criminal Procedure It is abundantly clear from Section 256 Code of Criminal Procedure that after the charge was framed and the statement of the accused was recorded, the only requirement was for the accused to tell as to which of the prosecution witnesses he wished to cross -examine. It is admitted on all hands that the accused did tell that and the witnesses were named by him whom he wanted to cross -examine under Section 256 Code of Criminal Procedure It was then the duty of the Magistrate to have summoned those witnesses, which however, was not done or if any attempt was made to summon the witnesses it did not fructify and the fact of the matter was that the witnesses were not available on the subsequent dates. Mr. Singh, therefore, contends, and rightly so in our opinion, that the presence or the absence of the complainant was meaningless, in these circumstances. It was the duty of the Magistrate to have summoned the witnesses and if he did not do so, the complainant could not be made to suffer on that account.
(3.) IN this connection, the learned Magistrate referred to Section 257 Code of Criminal Procedure but we wish to make it clear at this stage that the said section was only applicable after the defence was entered upon by the accused. That stage had not yet arrived and the only relevant section was 256 Code of Criminal Procedure and under that section obviously it was the duty cast upon the Magistrate to have summoned the witnesses which he never did. The complainant cannot be made to suffer on that account.;