The magistrate has the duty to recall witnesses for cross-examination under Section 256 of the Code of Criminal Procedure. The complainant is not responsible for the attendance of his witnesses.

Jamuar, J.

1. This is an application in criminal revisional jurisdiction by a complainant and is directed against an order of a Munsif-Magistrate of Aurangabad dated the 17th March, 1955, by which he acquitted the accused persons under the provisions of Sec.258 of the Code of Criminal Procedure.

2. The complainant had filed a petition of complaint against the opposite party, who were the accused, under Sections 430 and 147 of the Indian Penal Code. On the 25th of February, 1955, the learned trial Magistrate recorded the examination and cross-examination of two witnesses before charge. A third witness was tendered. Thereafter, he framed a charge under Sec. 430, Indian Penal Code, and to this charge the accused persons pleaded not guilty. He then directed that the case be put up on the 17th March, 1955, for cross-examination.

3. On the 17th March, 1955, the accused persons were present, but no witness for the prosecution turned up for cross-examination in spite of repeated calls. The procedure which the trial magistrate then adopted was that he expunged the evidence) which he had recorded on the previous date & then said that now that there was no evidence on the record to prove the charge against the accused persons, the accused persons must be acquitted under Sec.258, Criminal Procedure Code.

4. In support of this application it has been argued that the procedure adopted by the learned trial Magistrate was entirely illegal, for the reason that it was the duty cast upon the Magistrate himself to have taken effective steps for enforcing the attendance of the witnesses for the prosecution, who were to be cross-exmined on the 17th March, 1955, and that there was no duty cast upon the complainant to bring his witnesses on that date. The complainant, therefore, could not be penalised for the fault of the Magistrate in not having enforced the attendance of the prosecution witnesses, on the 17th March, 1955. In support of this contention the case of Sagir Uddin V/s. Mt. Munni AIR 1949 All 428 (A) has been cited, as also the case of Bepin Behari Maity V/s. Paban Surdar, AIR 1951 Cal, 418 (B).

5. In my opinion, the contention raised by the petitioner must succeed. Section 256 of the Code of Criminal Procedure provides that where an accused claims to be tried, he shall be required to state at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken, and if he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination, if any, they shall be discharged. This section, therefore, casts the duty of re-calling such witnesses upon the Magistrate. In the present case before us, the learned Magistrate does not appear either to have taken personal recognisances from the prosecution witnesses to appear on the 17th March, 1955, for their cross-examination, nor to have issued any summons upon them for their appearance on that date. All that he directed was, to sue his own words, "Put up on 17-3 1955 for cross examination". By such an order, the learned Magistrate did not discharge the duty of recalling those witnesses for cross examination which was cast upon him under the provisions of Sec.256 of the Code of Criminal Procedure. It was not the duty of the complainant to procure the attendance of his witnesses.

6. It was, however, argued on behalf of the opposite party that it would appear that the complainant had himself undertaken to produce his witnesses on the 17th March, 1955 and that for that reason the Magistrate had not issued any summons or any direction upon the prosecution witnesses to appear on that date. Reliance was placed upon the same case of the Allahabad High Court wherein it was also observed that unless the complainant undertakes to produce his witnesses himself in the