It is the duty of the Magistrate to enforce the attendance of the prosecution witnesses required for re-cross-examination by the accused, and the acquittal of the accused without doing so is illegal.

This is an appeal against the order of acquittal of the respondent of a charge under section 427, I.P.C. passed by Sri S. N. Misra. Magistrate First Class, Mirzapur.

2. The appellant Parbati Devi and the respondent Ram Narain were the complainant and the accused respectively in the lower Court. The appellant had filed a complaint against the respondent on September 25, 1968 relating to na occurrence which took place on November 10, 1967. It was alleged in the complaint that the respondent had demolished a latrine which was situated in a corner outside her house and was in the use of her family members since long. It was further alleged that as a result of the demolition of the latrine, she had suffered loss of about Rs. 200/-. She had also alleged some Marpit and exchange of hot words. Two witnesses were examined by her. The Magistrate framed a charge under Section 427, I.P.C. against the respondent. Subsequently 28th June, 1969 was fixed for further examination of the witnesses and probably for the production of some witnesses of the complainant. But on that date neither the complainant was present nor her witnesses. The accused respondent namely Ram Narain was also absent. In these circumstances the learned Magistrate acquitted the respondent under Section 258(f), Cr.P.C. without recording the statement of the accused under S. 342 Cr.P.C. The learned Magistrate has stated in his order that there was no evidence on the side of the prosecution and therefore no conviction could be recorded. Hence, in his opinion, the only course open to him was to acquit the accused.

3. There can be no two opinions that the view taken by the learned Magistrate is erroneous. In a warrant case where a charge has been framed it is the duty of the court to enforce the attendance of such of the prosecution witnesses as are required for re-cross-examination by the accused. This has to be done by the issue of the process if necessary coercive. The complainant in such a circumstance is clearly out of the picture. He cannot be made responsible for the presence of the witnesses whom the accused wants to re-cross-examine, unless the complainant him-self has undertaken to produce them. There is no such allegation in the present case that the complainant had undertaken to produce the prosecution witnesses. The acquittal of the accused in such circumstances was clearly unwarranted. The observation of the trial Court that there was no evidence on behalf of the prosecution is obviously incorrect because admittedly two witnesses had already been examined.

4. This view is supported directly by a decision of a Division Bench of this Court in Saghir Uddin v. Mt. Munni, AIR 1949 All 428 = (50 Cri.L.J. 674). It was held in that case that a duty is cast on the Magistrate to recall the prosecution witness for cross-examination, as required by section 256, Cr.P.C. The duty of procuring their attendance cannot be laid on the shoulders of complainant. In such a case when the complainant is also absent, the proper course for the Magistrate is to adjourn the case and ask the accused which of the prosecution witnesses he wishes to cross-examine and to summon them. His order acquitting the accused would be illegal and liable to be set aside. To the same effect are the judgments of the Patna High Court in Kunj Behari Yadav v. Basdeo Yadav AIR 1958 Pat 104 = (1958 Cri.L.J. 212) and the Tripura High Court in Aswini Kumar Bhowmick v. Dwijen Dev, AIR 1966 Tripura 20 = (1966 Cri.L.J. 20). There is thus no doubt that this appeal must technically succeed and the order of acquittal must be set aside.

5. The question, however, arises as to whether this is a fit case in which retrial of the accused should be ordered. From a perusal of the complaint and the evidence on the record it appears that the matter which the appellant tried to take up is an old one. The occurrence took place in November, 1967 and the complaint was lodged nearly ten months after in September, 1968. The f