P L D 1960 Dacca 463 (PLP)

2. It appears that the accused were produced under arrest on suspicion under section 54 of the Code of Criminal Procedure on the 12th of August 1956, and, on the 16th of September 1956, a proceeding was drawn up under section 110 of the Criminal Procedure Code asking the accused persons to show cause as to why they should not execute a bond to be of good behaviour for a period of two years. After the proceeding had dragged n until the 9th of January 1958, when the lawyer of the accused could not be present, the Court was disposed to take up the case for hearing although I find from the order- sheet that whilst a few of the previous adjournments of the case were made on the ground that one or the other accused person was not present in Court, most of the others were on the ground that the Court was not disposed to or available to take up the case. On the 9th of January 1958, however, the Court refused the prayer of the accused persons for an adjournment on the ground that the production of the witnesses on a subsequent date, for cross‑examination, would be difficult and the process would involve much expenditure of public revenue; it, nevertheless, found that it would not be able to finish the case in one day and so adjourned the case to another date. On that date, that is on 28‑1‑58, as the Magistrate was under orders of transfer and expected to leave the station soon, he could not take up the case. Then on the next day the only reason given for adjournment of the case was that the date did not suit the Magistrate. For the next two dates again, the case was not taken up as the dates did not suit the Magistrate and the case was adjourned till 8‑5‑

58. On the 8th of May 1958, however, by some remarkable process, the Magistrate managed to examine 37 witnesses in one day and called upon the accused to forthwith cross‑examine each witness. The accused declined to do so personally, as their lawyer was not present in Court. The examination and cross‑examination of the prosecution witnesses was, therefore, closed and a date was fixed for defence witnesses. Thereafter, repeatedly, the accused persons prayed for time for cross‑examination of the prosecution witnesses but on each occasion this was refused. Ultimately on the 21st of July 1958, the accused were called upon to argue the case ; they declined to do so. Hence the Magistrate, after hearing the prosecution only, adjourned the case to 9th of August 1958, for passing of orders and on this date passed orders directing them to furnish the security.

3. It nowhere appears from the order‑sheet that any examina tion under section 342 of the Criminal Procedure Code was made nor do the papers in the records contain any paper recording such examination. I have myself carefully examined the records and asked the learned Advocate appearing on behalf of the State about the examination under section 342 but he is also unable to discover the same. In the present case, since the order required security for good behaviour, the procedure for the trial was that which was applicable in the case of warrant‑cases by reason of the provisions of subsection (2) of section 117 of the Criminal Procedure Code. This necessitated that the accused should have been questioned generally after the witnesses for the prosecution had been examined and before he was called upon to enter on his defence, as provided in section 342 of the Criminal Procedure Code. Under section 256 of the said Code the accused were also in such cases entitled to ask for a special date for cross‑examination of the prosecution witnesses after their examination‑in‑chief had been closed. Of course, under section 256 of the Criminal Procedure Code, the Magistrate can insist upon the examination taking place forthwith but he must then record his reasons for so calling upon the accused, to cross‑examine forthwith, in writing.

4. In the order of the 8th of May 1958, some such reason has been given. It is said that the petition filed by the defence for time to cross‑examine the witnesses cannot be allowed as it will be very difficult to call all the witnesses again ; moreover, since this is not the first time the lawyer for the defence was unable to come, this petition should not be allowed. Examination of the order‑sheet discloses that this was actually the second time that the lawyer for the defence was unable to attend in the course of nearly two years' time. Be that as it may, since the reason for the immediate cross‑examination has been recorded, it may well be argued that there has been no illegality committed.

5. Some complaint was also made that there was no notice to show cause under section 112 of the Code of Criminal Procedure. On a persual of the record, however, I find that such a notice was in fact issued under the signature of the Sub‑divisional Magistrate on the 20th of October 1956. There is no illegality, therefore, in so far as this is concerned.

6. On behalf of the accused persons it was also argued that in the present case there has been no compliance with the pro visions of section 123 (2) of the Criminal Procedure Code in so far as the proceedings were not laid before the Sessions Judge but the Sessions Judge in appeal purported to confirm the order of the Magistrate.

7. Another argument sought to be advanced was that the learned Magistrate after making the order for the furnishing of the security illegally granted bail to the accused persons but it appears that this is not what was actually done. He having called upon the accused persons to furnish the security on the same day gave them at their request a little more time within which the bond was to be furnished. So there was no question of any default necessitating the laying of the proceedings before the Sessions Judge. Subsection (2) of section 123 of the Criminal Procedure Code was not, therefore, in my opinion, attracted to the present case. The accused persons themselves appealed to the Sessions Judge and, before the date given by the Magistrate could expire, the Sessions Judge had made the order on appeal by reducing the amount of security to Rs. 500 instead of Rs. 1,000, as fixed by the Magistrate.

8. It is manifest that this case must go back for compliance with the provisions of section 342 of the Code of Criminal Pro cedure. It can by no stretch of imagination be said that the total failure to examine under section 342 of the Criminal Pro cedure Code did not cause any prejudice to the accused persons. They have been totally denied the right to explain the circumstances arising in the evidence against them and such total denial of the right has certainly caused prejudice to the accused persons. .

9. Having come to the conclusion that this case must go back, I am also constrained to observe that, although technically there is nothing wrong in the Magistrate insisting upon the accused persons to cross‑examine the prosecution witnesses forth with, the order appears to me to be unduly harsh. It was not, in my opinion, humanly possible for the defence to get ready to cross‑examine 37 prosecution witnesses on the spur of the moment. 1t would not have mattered a great deal if the Magistrate had given them a little time to do so. Actually it appears that even after the 8th of April 1956, the case could not be disposed of until the 21st of July 1958. No great hardship would, therefore, have been caused either to the learned Magistrate or to the prosecution if a short time had been given for the cross‑examination .of the prosecution witnesses.

10. In these circumstances, I set aside the order of the Magistrate under section 110 of the Criminal Procedure Code and direct that the case be reheard from the stage in which it was on the 8th of May 1958, that is to say, that an opportunity should now be given again to the accused persons to cross‑examine the prosecution witnesses and thereafter they should be examined under section 342 of the Code of Criminal Procedure in accord ance with law and their defence witnesses, if any, examined and a proper judgment written after consideration of all the evidence on the record.

11. During the pendency of the rehearing of the matter, the accused persons will continue to be on the same bail on which they have been enlarged since the issue of this Rule.

12. Let the records be sent down immediately so that the case may be taken up as expediously as possible.

13. The defence must also remember that they should do nothing which may savour of their attempting to protract unneces sarily the proceedings. K. B. A. Case remanded.