The Magistrate has a duty under Section 256 of the CrPC to recall witnesses for cross-examination after ascertaining the accused's wishes, regardless of the complainant's actions or presence.

( 1 ) THIS Rule was obtained against an order of the learned Mag. of Alipore acquitting tinder Section 258, Cr. P. C. , the opposite parties against whom a charge had been framed under Section 379, Penal Code, after which the learned Mag. passed the following order : "to 6-3-50 for cross-examination of P. Ws. and further P. Ws. P. Ws. to give P. R. of Rs. 10 each. Accused as before. " on 6-3-1950 neither the complainant nor the witnesses were present. No petition was filed on behalf of the complainant to explain this absence. The learned Mag. pointed out in his order of 6-6-1950, that the record of the case would show that the complainant did not take steps for summoning his witnesses for that dav. He held also that the evidence of the witnesses on the record could not be admissible under Section 33, Evidence Act, as there was nothing on the record to show that the witnesses were absent on one or other of the grounds mentioned in that section. He pointed out that the witnesses had not been tendered for cross-examination and even the lawyer for the complainant was absent and no reason had been given why they were absent, and finally he held that there being no evidence on record against the accused persons they were acquitted under Section 258, Cr. P. C.

( 2 ) A case was sought to be made before us that the reason why the complainant was not present with his witnesses on the 6th. March was due to a misunderstanding of the date and that they were under the misapprehension that the date fixed was not the 6th March but 16-3-1950. We are not satisfied that there was any such misunderstanding and we are not disposed to interfere with the order passed by the learned Mag. on that ground.

( 3 ) THE question however remains whether when the complainant and his witnesses did not appear on the date fixed in spite of the fact that personal recognizance bonds had been taken from the witnesses it was the duty of the Mag. to take further steps for recalling them under the provisions of Section 256, Cr. P. C. The learned Mag. is apparently of the view that it was the duty of the complainant to produce those witnesses and as the complainant did not produce the witnesses and consequently the accused had no opportunity to cross-examine the witnesses, the evidence given in examination-in-chief could not be considered and it was in this view that he held that there was no evidence on the record.

( 4 ) IN the present case, not only the complainant but other witnesses also were absent on the date fixed. A somewhat similar question came up for consideration before this Ct. in Nutbehari v. Saroda Prosad, 37 C. W. N. 712 : (A. I. R. (20) 1933 Cal. 358 : 34 Cr. L. J. 498. After charge had been framed, the case was adjourned for further hearing on the date fixed, neither complainant, nor accused appeared and the Mag. acquitted the accused under Section 258, Cr. P. C. The order was set aside by Pearson and Paterson JJ. who held that the Mag. had no such right.

( 5 ) IT has been argued by Mr. Banerjee on behalf of the petnr. that after charge had been framed it was the duty of the Mag. to proceed in the way as laid down in Section 256, Cr. P. C. and himself recall the witnesses for cross-examination after ascertaining from the accused persons which of the witnesses they wanted to cross-examine. The relevant portion of Section 256, Cr. P. C. is in these words :"if the accused refuses to plead, or does not plead, or claims to be tried, he shall be required to state, at the commencemnt of the next hearing of the case, or, if the Mag. 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. 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. "

( 6 ) IT is to be noted that the duty that is cast on the Mag. to