P L D 1962 (W (PLP)

Date of hearing : 27th August 1962. This is a reference made by Mr. Shafiur Rahman, Sessions Judge, Hazara, Abbottabad, recommending that the orders of the trial Magistrate, dated 29th July 1961 and 9th August 1961, be set aside.

2. The facts of the case briefly are that Walidad was challaned under section 379/411, P. P. C. by Nawanshahr Police. The case was tried by Mr. Mohibur Rahman Kayani, Magis trate, First Class (Lawyer Magistrate), Abbottabad, who by his order dated the 21st of December 1960, as is evident from Order Sheet, Serial No. 6, discharged the respondent. On petition by the State against the order of discharge, the District Magistrate, Hazara, set it aside by his order dated the 5th of July 1961, and entrusted the case to Mr. Aman Khan, Special Traffic Magistrate, Hazara, Abbottabad, for further inquiry. From the record it appears that the case was previously tried as a warrant case, but on remand, Mr. Aman Khan took up the case summarily in view of the small value of the stolen property. The respondent was present in Court on the 13th of July 1961 and the case was adjourned to 26th of July 1961 for the state ments of the prosecution witnesses, and on the last-mentioned date, after the prosecution evidence was recorded, the case was adjourned to the 29th of July 1961 for defence evidence. On the last-mentioned date an application was made by the respon dent to the trial Magistrate, requesting the Court to recall the prosecution witnesses already examined for further cross-exami nation. This application was, however, rejected by the learned trial Magistrate.

4. Walidad respondent went up on revision to the Court of Sessions Judge, Hazara, Abbottabad, for setting aside the order of the trial Magistrate dated the 29th of July 1961, and the learned Sessions Judge has referred the case for quashing the above-mentioned orders, by his order, dated the 22nd of August 1961.

5. As pointed out above, the case was previously heard as a warrant case, but on remand, it was taken up on the summary side by the learned trial Magistrate. Section 262, Cr. P. C. reads as under :- "In trials under this Chapter, the procedure prescribed for summons-cases shall be followed in summons-cases, and the procedure prescribed for warrant-cases shall be followed in warrant-cases, except as hereinafter mentioned."

6. A plain reading of this section would show that after re mand the case was taken on the summary side by the trial Magis trate, but since it was a warrant case, the Magistrate was bound to have followed the procedure prescribed for warrant cases. The same view was taken in a case Munna v. Emperor (A I R 1939 Nag. 87), wherein it was held that "the object of Chapter XXII, Criminal P. C., is to shorten the record and the work of the Magistrate in making the record : it is not intended to deprive the accused-person of any of the rights under Chapter XX or XXI, Criminal P. C.' Hence in a warrant case tried summarily, an accused, after he is examined, is entitled to re-call prosecution witnesses for further cross-examination."

7. Section 256, Cr. P. C. entitles an accused person to request the Court to summon the prosecution witnesses already examined for further cross-examination and the Court shall summon such witnesses for further cross-examination. From section 256, Cr. P. C. and the authority cited above it is obvious that an accused person, after the framing of a charge and his examination under section 342, Cr. P. C., is entitled to recall the prosecution witnesses for further cross-examination, and he cannot be deprived of this right by any Magistrate arbi trarily, as has beep, done in this case, and so the order of the learned trial Magistrate dated the 29th of July 1961 is set aside.

8. From Order No. 3 on the Order-sheet dated 9th Augus 1961 it further appears that the bail-bond of the respondent was cancelled and he was taken into custody by the trial Magistrate because he had failed to bring his defence witnesses, and in the opinion of the trial Magistrate he was trying to prolong the case. This order of the learned trial Magistrate also cannot be main tained because there seems to be no justification for cancel in the bail of the respondent. In the light of the above discussion, I accept the recommendation made by the learned Sessions Judge, Hazara, set aside the orders dated the 29th of July 1961 and the 9th of August 1961, passed by the learned trial Magis trate, and remand the case to the District Magistrate Hazara, directing him to send the case to a Magistrate other than Mr. Aman Khan, who seems to have expressed his opinion. The bail granted to the respondent by the learned Sessions Judge, Hazara, by his order dated the 22nd of August 1961, is confirmed. K. B. A. Reference accepted.