P L D 1963 Azad J & K 85 (PLP)

This is a reference made by the District Magistrate Poonch dated 22‑12‑

62. He has recommended that proceedings of the trial held by the Tehsildar Magistrate II Class, Bagh in the case `State v. Munsabdar Khan and Sherdil under section 452/114, A. P. C. be quashed because the Magistrate failed to follow the procedure as laid down by the Azad Kashmir Criminal Procedure Amendment Act 1958. Section 4 (iii) of the Azad Kashmir Criminal Procedure Amendment Act runs thus :‑ "All warrant‑cases pending In the Courts of Magistrates shall be tried as warrant‑cases if charges have been framed against the accused but if no charges have been framed the procedure prescribed for summons‑case trials shall be followed. Section 5 of this Act, further lays down that a Court shall not recall or re‑hear any witness whose evidence has already been recorded by another Court of competent jurisdiction or to re‑open proceedings already taken but it shall continue the trial from the stage which the case has reached." In the present case the Magistrate II Class started to hear the case in accordance with the procedure prescribed for the warrant trials and recorded the statements of 4 witnesses on 9‑9‑

59. On 19‑12‑58 the Azad Kashmir Criminal Procedure Amendment Act was enforced. As the charges in the case before the Magis trate II, Class Bagh had not been framed he was required to switch over to summons‑case trial procedure in the case. This he inadvertently did not do and further examined two more P. Ws. on 29‑12‑1960. On 18‑8‑1962 he recorded the statement of the accused and changed over to summons‑case trial procedure. Now the trial Magistrate finds himself in a fix. He does not know whether he should re‑summon or re‑examine the P. Ws. already examined by him or should he proceed further and continue the trial beyond the stage which the case has already reached in view of the provisions of section 5 of the Azad Kashmir Criminal Procedure Amendment Act of 1958. Section 4 (iii) of the Azad Kashmir Criminal Procedure Amendment Act lays down that if in a pending case charges have not been framed trial prescribed for summons‑case trial shall be followed. There would be no difficulty for trial Court to follow the procedure of the summons‑case trials in a case pending before it if no prosecution evidence was recorded but the difficulty arises when the prosecution evidence has been partly or wholly recorded and no charges have been framed. If in such a case the trial Court proceeds to examine the accused under section 242,' Cr. P. C. the question arises as to how should it proceed further. Should it proceed beyond the stage to which the case has reached as required by section 5 of the Azad Kashmir Criminal Procedure Amendment Act and examine the remaining prosecution witnesses or if all of them have been examined to hear the accused and take all the evidence as he produces or re‑summon and re‑examine all the P. Ws. already examined by it under the procedure prescribed for warrants‑case trials. In view of the language of section 4 (iii) and the procedure prescribed for trial of summons‑case, my answer would be that the trial Court should summon and re‑examine all the P. Ws. already examined by it after recording the statements of the accused under section 242, Cr. P. C. There is another reason also why I shall so require the trial Court to do and it is that in warrant‑case trials the accused had a right to re‑summon and re‑cross‑examine the P. Ws. under section 256, Cr. P. C. after the framing of the charges against him. The accused would be deprived of this statutory right which he possessed at the com mencement of the trial against him in accordance with the procedure prescribed for warrant‑case trials, if the P. Ws. art not resummoned and re‑examined by the trial Court. Hence to avoid any step whereby the accused is likely to be prejudiced at the trial consider it necessary in spite of what is laid down in section 5 of the Azad Kashmir Criminal Procedure Amendment Act that the P. Ws. already examined before the procedure is switched over to one prescribed for summons‑case trial be examined afresh after recording the statement of the accused under section 242, Cr. P. C. I, therefore, fur the reasons stated above direct that the trial Magistrate should examine all the P. Ws, afresh in accordance with the procedure prescribed for summons case trials. The accused are present here today and have been directed to appear before the trial Magistrate on 2‑7‑1963. K. B. A. Case remanded.