Rameshwar Sahu vs Emperor

B.K. Mullick, J.—The petitioner was accused before the Sub-Deputy Magistrate of Ranchi of an offence u/s 447 of the Indian Penal Code. The relevant date for our purposes is the 4th July, 1927. On that date the complainant was examined and cross-examined and at 230 P.m. the trial Court stopped the casein order to take up some other cases which were urgent. At 5 o''clock he resumed the trial of the petitioner''s case and the cross-examination of the complainant went on for about twenty minutes. Then the trial Court intimated to the Pleader for the petitioner that the cross-examination was getting irrelevant and should be curtailed. The petitioner''s Pleader informed the Court that he intended to goon with the cross-examination for several hours more and'' finding the questions put by the Pleader after this to be irrelevant the trial Court stopped the cross-examination. He then called upon the petitioner to cross-examine the four remaining prosecution witnesses. The Pleader replied that unless he was allowed to cross-examine the complainant in his own way he would not cross-examine the other four witnesses. The trial Court thereupon discharged these four witnesses and examined the accused and adjourned the case until the 16th July for hearing the defence witnesses.

In the meantime the Deputy Commissioner was moved by the petitioner to transfer the case to some other Court but on the 19th July, after hearing the. explanation of the trial Court the Deputy Commissioner declined to allow a transfer but suggested that the four prosecution, witnesses who had not been cross-examined should be re-summoned if the petitioner so chose as defence witnesses and that such questions should be put to them as were admissible in examination" in chief.

On the 29th August, the witnesses, cited by the petitioner for his defence as well as the four prosecution witnesses who had not been cross-examined appeared in Court in answer to the Court''s summons. The petitioner then asked permission to cross examine these four witnesses but. the trial Court refused, the request and took the examination and cross examination of five of the defence witnesses and adjourned the case to the 31st August. It appears that the petitioner declined to examine the prosecution witnesses as his defence witnesses and, therefore, they were discharged.

On the 31st August. the case was adjourned till the 1st September when the petitioner was convicted u/s 447 of the Indian Penal Code and sentenced to rigorous imprisonment for two weeks and a fine of Rs. 25.

An appeal was filed against this order to the Deputy Commissioner but was dismissed after a full hearing.

Thereupon an application was made in revision to the Sessions Judge. The learned Sessions Judge was of opinion that although if this had been a warrant case the provisions of Section 257 of the Code of Criminal Procedure would have compelled the trial Court to allow the cross-examination of the four prosecution witnesses the case being a summons case the procedure of Section 257 did not apply and that the trial Court had full liberty to cut down the cross-examination provided the general scheme for the trial of summons cases was not violated. The petitioner now comes before me in revision.

I think it is clear that the petitioner''s Pleader adopted a wholly unjustifiable attitude on the 4th July. It is not now suggested before me that the time given for the cross-examination of the complainant was inadequate and instead of agreeing to cross-examine the four prosecution witnesses when called upon to do so he adopted a somewhat disrespectful attitude and declined to go on with the case if he was not allowed to cross-examine the complainant according to his own ideas and for as long as he liked. This was an altogether unjustifiable position and the trial Court was fully competent to discharge the witnesses when the petitioner''s Pleader declined to cross-examine them. Therefore, when an application was made to the trial Court to re-summon these prosecution witnesses for cross-examination on the analogy of the provisions contained in Section 257 of the Code of Criminal Procedure it would have been open to that Court to refuse to summon them on the ground that an opportunity for cross-examination had already been given. The same ground could also have been taken by the learned Deputy Commissioner when he dealt with the transfer matter. But, in my opinion, the learned Deputy Commissioner while allowing the prosecution witnesses to be re-called was wrong in limiting the scope of the examination. Obviously it was not to the interest of the petitioner to recall the prosecution witnesses and put to them such questions as would be only permissible in examination in chief Such a course would have only made the case against him worse and the only object of re-calling prosecution witnesses as defence witnesses was to secure an opportunity for further cross-examination. Such an opportunity is not usually given but the provisions of Section 257 are exceptional and in exceptional cases the accused after a witness has been called for the prosecution and discharged is allowed a further opportunity of supplementing the cross-examination of that witness by again cross-examining him. Once a summons has been issued and the witness is before the Court it does not seem to me that there is any jurisdiction in the Court to dictate to the accused the terms upon which the examination of the witness shall be conducted. If the accused wishes to put questions in cross-examination the Magistrate is bound to allow it. I think, therefore, that the accused should have been allowed to cross-examine the prosecution witnesses who were present on the 29th August, Though it was a summons case I think the principle of Section 257 applies.

It seems, therefore, to me that the proper course now is to set aside the order of the learned Deputy Commissioner and to direct that the cross-examination of Bania Oraon, Madho Oraon, Jakhua Oraon and Kaila Oraon be taken either by the learned Deputy Commissioner himself or by any other officer to whom the case may be remanded by him for that purpose and that after the evidence has been so taken the appeal be re-heard by the learned Deputy Commissioner according to law.