JUDGMENT - (1) The opponent Mohamadkhan son of Hasankhan, aged about 25, by occupation a bidimanufacturer, of Nagpur, is being prosecuted before the First Additional Sessions Judge, Nagpur, for an offence under Section 366 of the Indian Penal Code in Sessions Trial No. 34 of 1959. The prosecution alleged that he was responsible for kidnapping one Mst. Lila wife of Karudas who a worker in the bidi factory owned by him. Mst Lila had been working there during the year 1958 and on or about 16-7-1958 she had a quarrel wiith her husband karudas. As a result of the quarrel she left her husbands place and was going to her grand mothers place at about 8-30 or 9.pm At about this time the opponent is said to have met her on the road and persuaded her to accompany him. She was taken to the house of Babibkhan (P.W.5) where she was kept for two days. With the merits of these allegations I am not here concerned.

(2) After part of the prosecution evidence had been tendered before the sessions court, the sessions trial was by order dated 22-7-1959 of the sessions Judge, Nagpur, transferred from the court of Mr. B.V. Patwardhan Extra Additional Sessions Judge, Nagpur, to the court of Mr. T.L. Junankar, First Additional Sessions Judge. The order impugned in this revision application was passed on the 22nd July 1959.

(3) A day before the case was transferred as stated above the prosceution filed an application before Mr. Patwardhan that three witnesses whom the prosecution had not examined during investigation should be allowed to be summoned and examined in the interests of justice. The three witnesses were Dr. Kanikadaley, the Radiologist, Mayo Hospital, Nagpur, Karudas, the husband of the complainant Mst. Lila and Rama, her father. In their application dated 20-07-1959 the prosecution indicated that the evidence of the husband was necessary on the question of the proof of marriage and lawful guardianship of Mst. Lila on 16-7-1958 and the fathers evidence was necessary in order to prove her age and the report relative to the birth of Mst. Lila made to the police on 24.5.1941 The Exta Additional Sessions Judge Mr. Patwardhan rejected this application so far as the last mentioned two witnesses were concerned. Thereafter as I have said above, the trial was transferred to the court of Mr. T. L. Juanankar, the First Additional Sessions Judge Nagpur.

(4) On 22-7-1959 the prosecution put in a further application before Mr. Junankar. By this application they prayed that they would produce Karudas and Rama before the court and that they should be permitted to examine those witnesses for the prosecution. The application also stated that when the counsel for the prosecution opened the case, he had specifically referred to the evidence of Karudas and Rama and had stated that they would be examined as additional witness though they were not examined before or mentioned in the challan. The additional Sessions Judge rejected this application for the following reason:

A similar application was already made to Shi Patwardhan, Extra Additional Sessions Judge, Nagpur, and was rejected by him, on 21-7-1959. Parties heard. I do not think that I should review that order dated 20-7-1959 nor do I think that this court has power to review the same. The application is rejected.

(5) Thereafter on 25-7-1959 the prosecution made a further attempt to get in the evidence of those two witnesses. They made another application reiterating that in the opening address under Section 286 of the Code of Criminal Procedure, the Public Prosecutor had stated that additional evidence will be adduced by examining Karudas, the husband of the prosecutrix, and Rama, the father of the Prosecutirix, for proving the fact of lawful guardianship at the time of the commission of the offence and the age of the prosecutrix on the day of the incident with reference to the birth date of Mst. Lila as shown in the register of birthes. The prosecution also explained that they were not seeking the help of th

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