Sreenath Barai and Others vs Empress, On The Prosecution of Dhonojoy, Alias Dhonsi Barai

The Magistrate, in refusing to allow the witnesses for the prosecution to be resummoned for the purpose of cross-examination after the accused had entered on their defence, gave no reasons for such refusal. He now states that the witnesses were sufficiently cross-examined, and he does not consider that the application for recalling them was a bond fide application because it was made, not on the day, on which the accused were called upon to make their defence but on the following day. We think that this delay of one day is in itself no sufficient reason for refusing the application, and we also think that the mere fact that the witnesses had already been cross-examined is not a sufficient reason for refusing to re-summon them unless the Magistrate expressly records his opinion that the application for the second cross-examination is, within the terms of sec. 257, for the purpose of vexation or delay or for defeating the ends of justice. The Magistrate has recorded no such opinion, and we think, therefore, that his order of refusal was not a proper order. We accordingly direct that the conviction and sentence be set aside and that the trial be re-opened by giving the accused an opportunity of cross examining the witnesses. We think also, inasmuch as the proceedings will be re-opened, that the accused should have an opportunity, if they desire it, of obtaining processes for the attendance of any other witnesses that they may wish to be examined.