N.L.Tibrewal, J. - (1.) This petition is directed against the order dated 25.10.90 Judicial Magistrate No. 3, Ajmer, in criminal case No. 2004/86.
(2.) The facts of the case are that the petitioner is facing trial in the aforesaid court of the learned Magistrate under section 16/54 of the Rajasthan Excise Act. Two witnesses, namely, Himmat Singh and Navratan Mal were examined by the prosecution but they could not be cross-examined as the learned counsel for the petitioner was held up in a Sessions trial. Thereafter, the statement of the accused was recorded under section 313 Cr.P.C. At the stage of production of defence evidence, the petitioner moved an application in the Trial Court under Section 243(2) Cr.P.C. with a prayer to call the prosecution witnesses, Himmat Singh and Navratan Mal for cross-examination as they could not be cross-examined at the earlier stage for the reasons mentioned above. The learned Trial Court rejected the said application simply on the ground that the counsel for the petitioner and the accused petitioner himself had an opportunity to cross-examine the witnesses at the earlier stage. but they did not cross-examine, as such the witnesses cannot be recalled for cross-examination.
(3.) Aggrieved against the said order, the present petition has been filed. Section 243 Cr.P.C. can be reproduced as under for the sake of convenience:- "243. Evidence for defence. - (1) the accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record. (2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground be recorded by him in writing; Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice. (3) The Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court.";