The applicant Rasik Behari is being prosecuted for an offence under Section 7/16 of the Prevention of Food Adulteration Act. From a perusal of the record it appears that Sri R. L. Trivedi, Food Inspector (P.W. 1) was examined under Section 252, Criminal P.C. on 8-7-1969 and the accused was examined on 22-7-1969. A charge was duly framed against the accused under Section 7/16 of the Food Adulteration Act. It appears from the perusal of the order sheet that on 7-10-1969 in the presence of the accused the Court fixed 22-10-1969 for the prosecution evidence. On that day the witnesses did not come. On an application being made 21-11-1969 was fixed for prosecution evidence. On this date also the prosecution witnesses could not be produced. The date was therefore adjourned to 17-12-1969 for the aforesaid purpose. The case was again adjourned to 7-1-1970 on which date the accused and his counsel were present. The statements of prosecution witnesses Shyam Babu (P.W. 2) and Ram Lakhan (P.W. 3) were recorded under Sec. 256, Criminal P.C. Both these witnesses were cross-examined by the defence counsel. The prosecution evidence was closed and the witnesses discharged. The Magistrate fixed 21-1-1971 for recording the statement of the accused under Section 342, Criminal P.C. and for the defence. The Hindi order-sheet of 7-1-1970 runs thus :-

"Aaj yah mukadma banasri mulzim mai vakil pesh hua. Shyam Babu aur Ram Lakhan gawahon ke beyanat likhe gai, aur saboot samapt hua Ata Adesh hua ki waste biyan 342 wa safai misil tarikh 21-1-1970 ko pesh howe."

2. Thereafter on 21-1-1970 the accused did not appear and it was ordered that 10-2-1970 be fixed for his statement under Section 342 and for his defence. The Hindi order-Sheet dated 21-7-1970 is quoted as under :-

"Aaj yeh mukadma pesh hua. Mulzim hazir nahin aya. Daure ke mukam hai Ata Adesh hua ki waste bayan 342 wa safai misil tarikh 10-2-1970 ko pesh ho."

3. On 10-2-1970 when the case was called for hearing an application was filed on behalf of the accused for recalling the prosecution witnesses. This application was rejected by the Sub-Divisional Magistrate, Auraiya, Aggrieved by this order, Rasik Behari filed a revision before the Additional Sessions Judge, Etawah which was dismissed on 25-4-1970. The applicant has now come to the Court in revision.

4. I have heard counsel for the parties. It is contended on behalf of the accused applicant that the Magistrate concerned acted illegally in refusing to recall the prosecution witnesses and in rejecting the application filed by him on 10-2-1970. Counsel for the State has urged that the order in question was perfectly legal and was amply justified. He submits that on the facts of this case, the accused could have a right to apply for recall of the prosecution witnesses under S. 257, Criminal P.C. after he has entered upon his defence. I shall now examine the force of these contentions.

5. From a perusal of the record and the order sheet of which the relevant portions have been quoted above it is apparent that the proceedings in question had reached the stage of Section 256, Criminal P.C. The prosecution witnesses had been examined. The accused exercised his right of cross-examination. The Court then fixed a date for recording the statements of the accused under Section 342, Criminal P.C. and for his defence. The question for consideration therefore is as to what meaning should be attached to the expression. "The accused shall then be called upon to enter upon his defence and produce his evidence." We have therefore, to determine "when the accused enters upon his defence."

6. For a decision of this question it is necessary to examine the wordings of Section 342, Criminal P.C. Sec. 342, Criminal P.C. runs thus :-

"For the purpose of enabling the accused to explain any circumstance appearing in the evidence against him the Court may at any stage of any inquiry or trial without previously warning the accused put such questions to him as the Court