Sonu Kurmi and Another vs Emperor

James, J.—The petitioners have been convicted of attempted burglary in the town of Gaya. At the time of the occurrence in. respect of which the petitioners have been convicted, they were under trial for another burglary for which they were convicted but were subsequently acquitted in appeal. In the present case the charge was framed on 12th April, when the hearing was adjourned till 5th May for cross-examination of the prosecution witnesses. On 5th May the trying Magistrate was ill and the trial was adjourned till the 25th. The petitioners who had been convicted had by this time been acquitted by the Sessions Court on appeal and had in this case been released on bail.

On the 25th, when the prosecution witnesses attended Court for cross-examination for the second time, the petitioners prayed for an adjournment on the ground that they were not ready then to cross-examine the witnesses. The Magistrate declined to grant an adjournment, and the pleaders who were appearing on behalf of the petitioners declined to cross-examine the witnesses. The witnesses were accordingly discharged. On the following day a petition was presented praying that the prosecution witnesses might be recalled for cross-examination u/s 257, Criminal P.C. The Magistrate pointed out that an opportunity had already been given for examination of these witnesses after charge and he declined to re-summon them. In appeal before the Sessions Judge the point was taken that cross-examination of the prosecution witnesses had not been permitted; but the learned Sessions Judge pointed out that an opportunity had been given of which the appellants had not availed themselves.

It is argued before me that when there had been no cross-examination after charge, the learned Magistrate ought to have issued process u/s 257 to recall the witnesses; but it is provided by Section 257 that when the accused had the opportunity to cross-examine a witness after the charge is framed, the attendance of such witness shall not be compelled under this Section unless the Magistrate is satisfied that it is necessary for the purposes of justice. I consider that after the opportunity had been given on the 25th and advantage had not been taken of it, the learned Magistrate was justified in acting under the Proviso in declining to recall these witnesses for cross-examination.

When the appeal was presented before the Sessions Judge, he appointed a day for hearing the pleader and after hearing him dismissed the appeal summarily. It is argued that he ought not to have done this; but the judgment of the learned Sessions Judge is a complete one dealing with the evidence in detail and with the points raised on behalf of the appellants; and no grievance can be made of the fact that he did hot issue notice to the Crown, considering it unnecessary to call upon the Public Prosecutor to reply to the arguments adduced on behalf of the appellants. I cannot interfere in this case and the application must be dismissed. The petitioners must surrender to their bail and serve out the unexpired portion of their sentences.