JUDGMENT

Abdul Qadir, J. - This case has been reported by the Sessions Judge of Hoshiarpur. Two persons, Mahan Singh and Mt. Shabdo, were prosecuted by one Taloka, under Section 500, Indian Penal Code. They were tried by an Honorary Magistrate, First Class, who framed charges against them but omitted to ask them at that stage if they wanted to re-call any witnesses for cross-examination. They produced their witnesses in defence and were fined Rs. 10 each. They applied to the Sessions Judge on the revision side attacking their convictions. Their grounds for revision were confined to objections to the case for the prosecution on the merits; and the legal ground that the provisions of Section 256, Criminal Procedure Code, were not carried out, was not expressly taken by them. It appears, however, that it was argued before the learned Sessions Judge, and he has forwarded the proceedings to this Court with a recommendation that the case should be remanded to the Honorary Magistrate or a re-trial before a different Magistrate ordered.

2. Mr. Trilochan Das Khanna appears before me to support the petition and ralies an Moola v. Emperor (1915) 16 Or. L.J. 146, where it is laid down that the omission to follow Section 256 usually involves remand and re-trial of the case from the point of drawing up of the charge. A different view has been taken by the Madras High Court in a case published as Munian Chetty v. Emperor (2), which says that the omission to ask the accused whether he wants to cross-examine the prosecution witnesses again or not is a mere irregularity and does not vitiate a conviction.

3. But I am inclined, on the whole, to agree with the learned Sessions Judge that the provisions of Section 256, Criminal Procedure Code, are imperative, and the petitioners have a right to be given an opportunity of further cross-examining the prosecution witnesses, if they so desire.

4. I, therefore, remand this case to the Honorary Magistrate concerned, with the direction that he should re-try it from the stage at which the charges were framed, and dispose of it according to law, after giving the petitioners a chance of re-calling the prosecution witnesses and further cross-examining them.