Dwarka Singh and Others vs Emperor

James, J.—The petitioners were placed on their trial on charges framed under Sections 145 and 225, I.P.C. When they entered on their defence they named certain defence witnesses for whose attendance the Magistrate issued processes u/s 257 of the Code. One of these witnesses was absent on the date fixed for his appearance and the Magistrate re-issued summons saying that if the witness did not appear on the date then fixed no further adjournment would be given. On the final date the witness did not appear but the Magistrate refused any further adjournment on the ground that ample opportunity had already been afforded to the defence to procure the attendance of this witness. He did not immediately dispose of the case but he took no more evidence and proceeded in due course to hear arguments aud pronounce judgment.

When the Magistrate issued the process u/s 257 he undertook to compel the attendance of the witness and the defence could not be held responsible for his failure to appear. If the Magistrate considered that the application for process ought to have been refused, he should have refused it in the first instance Recording his reasons in accordance with the provisions of Section 257. When he had once issued the process, unless on subsequent scrutiny he had found that u/s 257 he ought to have refused process, he was obliged to take every step in his power to compel the attendance of the witness subject to the provisions of Sub-section (2), Section 257. The Magistrate''s action in proceeding to judgment was therefore illegal and the conviction and sentence must be set aside.

I direct that the accused persons be retried either by the District Magistrate or by a Magistrate subordinate to him other than the Magistrate who tried this case.