Queen-Empress vs Dhananjoi Chaudhuri and Others

Prinsep and Macpherson, JJ.—The Deputy Magistrate in this case has convicted the accused without examining certain witnesses who had been summoned for the defence. It appears that on the day of trial these witnesses were not present and the accused asked for fresh processes. The Deputy Magistrate refused to postpone the trial or to issue fresh processes on the following ground:

The witnesses are all friends of the accused, and could have been produced to-day even if they did not receive the summonses. I therefore decline to grant this petition." Having once granted the processes for the attendance of these witnesses, this was not sufficient ground for the refusal to assist the accused in obtaining their evidence. If the Deputy Magistrate in the first instance considered, u/s 257 of the Code of Criminal Procedure, that the application for summons for these witnesses was made for purposes of vexation or delay, or for defeating the ends of justice, he might have refused to summon them at all. But having once granted the processes, he was bound to assist the accused in enforcing the attendance of the witnesses. The conviction and sentence must therefore be set aside, and the trial must proceed, processes being issued for the attendance of these witnesses.