1. This is a reference made by the learned II Temporary Sessions Judge, Fatehpur recommending that the learned trial Magistrate be directed to allow the accused in the case to examine any witness as defence witness irrespective of the fact whether he had already been examined as prosecution witness or not.

2. The material facts giving rise to this reference are that Manni is on trial in the court of the learned Additional District Magistrate (J), Fatehpur for an offence punishable under Section 379, Indian Penal Code on the basis of a police report. He is consequently being tried in accordance with the procedure prescribed by Section 251-A of Chapter XXI of the Criminal Procedure Code hereinafter referred as the Code. After the charge was framed by the learned Magistrate the prosecution examined in support of its case P.W. 1 Shiv Darshan, P.W. 2 Nankau, P.W. 3 Pittan and P.W. 4 Udaya Narain Singh. The first three witnesses were examined as witnesses of fact and deposed about the occurrence in respect of which Manni is on trial. After examination in chief of each of the witnesses mentioned above he was tendered for cross-examination by the accused. There is a note below the statement of each witness to the effect that "the counsel for the accused states that he does not want to cross-examine the witnesses". These witnesses were examined by the prosecution evidently as required by Sub-Section (7) of Section 251-A of the Code. Manni thereafter entered upon his defence. On the 4th of December, 1971, an application was made on behalf of Manni stating that the "Cross-examination of prosecution witnesses Shiv Darshan, Nankau and Pittan could not be done which was prejudicial to the accused." It was prayed that the three witnesses mentioned above be recalled at the expense of the accused for their cross-examination in the interest of justice. The learned Magistrate rejected the application by an order of the same date on the ground that sufficient opportunity had already been given to the accused to cross-examine the prosecution witnesses and he consequently found no ground to summon them again. Thereafter a second application was presented by the accused before the learned Magistrate in which it was stated that it was necessary to examine P.Ws Shiv Darshan, Nankau and Pittan in defence. It was prayed that the above-mentioned three witnesses be summoned at the cost of the accused to give evidence in the interest of justice. The learned Magistrate directed the application to be put for orders on 7th December, 1972, on which date he ordered as follows :-

"The accused has summoned these prosecution witnesses as defence witnesses. These witnesses were examined as prosecution witnesses and the accused's Counsel who was also present was given full opportunity to cross-examine these P.Ws. after which their statements were closed. But it is not clear to me as to how these prosecution witnesses who have been examined as P.Ws. can again be examined as D.Ws. I would have granted the prayer had full opportunity not been given. Hence this application appears simply to delay the proceedings without any reasonable cause. It is now defence stage and the accused may examine any witness as D.W. who has already not been examined as D.Ws. File. However further time for D.Ws. is given."

Against this order Manni went up in revision before the learned Sessions Judge. Relying on a decision of Kotwal J., in State v. Masa Singh Chanda Singh, AIR 1959 Bom 368 : (1959 Cri LJ 1062) the learned Sessions Judge took the view that

"it was open to the accused to examine or to cross-examine even the aforesaid three prosecution witnesses as defence witness and the learned Magistrate could refuse their examination or cross-examination only on the ground that the application had been moved for the purpose of vexation or delay or for defeating the interest of justice."

In this view of the matter the learned Sessions Judge has made this reference.

3. I have gone throug