DEBABRATA MOOKERJEE, J.

( 1 ) THIS is a reference by the learned Sessions Judge of Jalpaiguri under Section 438 of the Code of Criminal Procedure recommending that an order of a Magistrate dated 20-9-1956, declining to issue processes for the attendance of three witnesses for examination by the prosecution, be set aside.

( 2 ) IT appears that the accused was being tried on a charge under Section 324 of the Indian Penal Code in accordance with the provisions of Chapter XXI of the Code of Criminal Procedure. Copies of necessary documents were furnished to the accused under the provisions of Section 173 (4) of the Code. The case was eventually set down for hearing on 20-9-1956. On that date, an application was filed by the court sub-inspector in charge of the conduct of the prosecution, praying that three witnesses be summoned to give evidence in the case. The learned Magistrate refused the prayer on the ground that none of these witnesses had been examined by the police during investigation and their statements consequently had not been recorded under Section 161 of the Code. Obviously the learned Magistrate was under the impression that Section 173 (4) provided a bar to the examin

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