Raktoo Rai vs Emperor

Chapman, J.—The petitioner in this case was giving evidence in the course of a trial before the Sub-Divisional Magistrate of Sitamarhi instituted upon a Police report. The statement he made was not the statement which he was expected to make by the prosecution. He was treated as a hostile witness and subjected to cross examination. At the conclusion of his deposition the Magistrate drew up proceedings against him, directing him to show cause why he should not be prosecuted u/s 193 of the Indian Penal Code in respect of certain statements made by him in the course of his deposition. The petitioner declined to show cause, whereupon the Magistrate directed proceedings against him u/s 193, the order being passed presumably u/s 476 of the Code of Criminal Procedure. I am of opinion that the Magistrate was not justified before the conclusion of the trial in taking proceedings against the witness, inasmuch as there could not have been any material before him sufficient to justify such a proceeding. I accordingly direct that the order u/s 476 be set aside and that the prosecution of the petitioner be stayed.