The provisions of Sec.208, Clause (2) of the Code are mandatory and, therefore, the Magistrate has no power to deprive the accused of their statutory right to cross-examine the prosecution witnesses even though a few of them cross-examined some prosecution witnesses in the trial of the case under chap. 21 before the charge.

1. An important question of law is involved in these five petitions and so they have been referred to a Division Bench. As the point of law in all these cases is common and arises out of the facts of the same case, this judgment will govern them all.

2. The petitioners moved this Court for the transfer of the case from the Court of Mr. S.N. Prasad, Subordinate Judge of Patna who is invested with the powers of a Magistrate of the first class (hereinafter to be referred as the Magistrate) to the Court of some other Magistrate of competent jurisdiction. In the alternative there is a prayer for a direction that the petitioners may be allowed an opportunity to cross-examine the prosecution witnesses according to the provisions of Sec.208, Criminal P. C. It may be stated that the petitioners have withdrawn their applications for the transfer of the case and the only point pressed before us is that the learned Magistrate is wrong in law in rejecting the prayer of the petitioners to cross-examine the prosecution witnesses under Sec.208 of the Code. In order to appreciate the argument the relevant facts may be shortly stated as follows.

3. Two separate investigations were started by the Provincial C. I. D. and the Delhi Special Police Establishment in connection with an illegal disposal of distillary molasses. Several persons, including one Ramji Lal Marwari and his lour servants or agents, are alleged to have taken part in the disposal thereof. The Provincial Police submitted a charge sheet on 4th November 1948, against some of the accused. Cognizance of the case was taken by the Subdivisional Magistrate, Samastipur. While the case was pending before him, an application was made to this Court for the transfer of the case to a competent Court of sum other district. This Court by its order dated 12th January 1949, transferred the case to the Court of the Subordinate Judge Magistrate, Patna and ultimately the case came up for trial in the Court of Mr. S.N. Prasad, While the case was pending in his Court, the Central Police submitted a charge-sheet on 25th May 1949, against several peraona including some of those against whom the Provincial Police had submitted the charge sheet. It may be stated here that the Central Police submitted the charge sheet under various sections of Penal Code as well as under s. 5, Prevention of C irruption Act, 1947 (Act II [2] of 1947) while the Provincial Police had submitted the chargesheet only under different sections of the Penal Code. On 25th May 1949, the Public Prosecutor made an application to the Court for the withdrawal of the case against Ramji Lal Marwari and four other parsons who are said to be his servants or agents, on the ground (as it appears from the order sheet) that he wanted to examine them as prosecution witnesses. The learned Magistrate gave his consent as required by Section 494, Criminal P. C. and by his order dated 25th May 1949, allowed the prayer for withdrawal and discharged Ramji Lal Marwari and his four servants.

4. The trial commenced on 23rd June 1949, and the procedure adopted, at the instance of the Public Prosecutor, was that of warrant cases as laid down in Chap. XXI, Criminal P. C. In all, 99 prosecution witnesses were examined including Ramji Lal Marwari and his four servants out of whom about 38 prosecution witnesses were cross examined by some of the accused at some length under Sec.252 of the Code. Some of the accused, however, did not cross-examine any of the prosecution witnesses. The prosecution closed its case on 18th March 1950. After hearing arguments on the evidence for seven days the Court framed charges on 11th May 1960, under several sections of the Penal Code and also under Sec. 5, Sub-section (2) of Act II [2] of 1947, against some of the accused who are petitioners before us.

5. It may be stated that the last mentioned charge is exclusively triable by the Court of Session under the provisions of Sec.29 read with schedule II, Criminal P. C. Appar