Sheikh Emtaz Ali vs Jagat Chandra Banerjee

Ghose, J.—We have considered the explanation of the Honorary Magistrate in this case, and it seems to us that the accused has not had proper opportunity given to him to examine witnesses in his defence. It appears that on the 19th February, when the case was last taken up, certain witnesses for the prosecution, who had been examined-in-chief, were cross-examined by the accused. Upon the conclusion of such examination, a charge or charges were framed against the accused, which were explained to him. He then stated that he would bring witnesses, if the case were postponed; but the Magistrate thought that they ought not to allow any postponement, because at the outset the accused had stated he had no witnesses. The petitioner, however, swears in his affidavit that what he meant to say was that he had no witnesses there present in Court, and the fact that after the charge was framed he did say before the Magistrates that he could bring witnesses if the case were postponed, shows that he really wanted to examine witnesses in his defence. Looking at secs. 256 and 257, Criminal Procedure Code, it seems to be perfectly plain that the accused was entitled, as a matter of right, to ask that the case might be postponed to some other day, so as to allow him an opportunity to adduce evidence in support of his defence. He might have asked the Court to subpoena the witnesses, but he was content simply to ask for a postponement of the case, so that he might bring in his witnesses. An application like this ought certainly to have been granted by the Magistrates; and it seems to us that the accused has been prejudiced in the trial by the course adopted by the Magistrates in this case. We, therefore, set aside the conviction and sentence and direct that the Magistrate do fix another date for the trial of the case, so as to allow the petitioner an opportunity of adducing evidence in support of his defence.