Siva Anjaiah vs State of Andhra Pradesh

Madhava Reddy, J.—After the charge was framed, as the witnesses for the prosecution were not produced for further cross-examination, the right to examine further witnesses on behalf of the prosecution was ordered to be forfeited by the First Class Magistrate, Kothagudem on 23-6-1970. On a petition filed on behalf of the State that order was set aside by a subsequent order dated 7-7-1970 and the prosecution was permitted to lead evidence". The accused questioned that order in revision before the learned Sessions Judge, Khammam. That having been dismissed he has moved this Court u/s 439, Cr.PC

The learned Magistrate having forfeited the right of the prosecution to examine further witnesses and posted the case for the examination of the accused, acted illegally and without jurisdiction in setting aside that order. The order made by the Magistrate could have been set aside only in appeal or revision as the case may be. If he thought it necessary to examine further witnesses he could have exercised his powers u/s 540, Cr.PC but he had no jurisdiction to set aside the order upon a petition by the State. The order dated 7-7-1970 is, therefore, set aside.

But that is not conclusive of the matter. this Court, exercising jurisdiction u/s 439, Cr.PC is competent to examine whether the Magistrate was justified in forfeiting the right of the prosecution to examine the witnesses. Of course, the summons not having been served, the prosecution witnesses could not be present for further cross-examination. But where a charge was framed the prosecution witnesses ought to have been bound over for further cross-examination and there should not have been any occasion for summoning them once again. It is the duty of the Magistrate to bind them over for further cross-examination in the event of a charge being framed after ascertaining from the accused which of the witnesses he wished to further cross-examine. That was not done by the Magistrate. The order of the Magistrate dated 23-6-1970 forfeiting the prosecution''s right to adduce evidence is, therefore, set aside. In the result, the orders of the Magistrate dated 23-6-1970 as well as that of 7-7-1970 are set aside and the Magistrate is directed to record the evidence of the prosecution witnesses and proceed further in accordance with law.