Kumaraswami Sastri, J.
1. The chief ground urged in appeal is that the accused were prejudiced by the refusal of the Magistrate to allow them to re-call and cross-examine the prosecution witnesses.
2. The accused were tried for offences under Sections 504 and 352 of the Indian Penal Code, and during the course of the proceedings the Magistrate dismissed the complaint under Section 504 and proceeded with the charge under Section 352.
3. When the summons case and a warrant case are tried together, the procedure to be followed is that provided for the warrant case: Rajnarain Koimwai v. Lala Tamoli limit 11 C. 91. The accused would, therefore, have teen entitled under Section 256 of the Code of Criminal Procedure to re-call and cross-examine the prosecution witnesses had the trial1 on both charges been proceeded with. They could not have anticipated that during the trial the charge under Section 504 would have been dismissed, and it cannot; be said that they were in default.
4. The refusal of the Magistrate to allow the accused to re-call and further cross-examine the prosecution witnesses was, therefore, illegal.
5. The next question is whether the accused were prejudiced. This is a difficult one to decide, as it may be that if cross-examination had been allowed as provided for in Section 256 of the Criminal Procedure Code, facts may have been elicited favourable to them, The privilege conferred by that section is a substantial one, and when denied, it is for the prosecution to show that there was no prejudice. Mr. Nagabhushanam says that the accused were prejudiced and having regard to the evidence and the materials before me, I cannot say that he is wrong.
6. Two other grounds have been urged, namely, (1) that the Magistrate was wrong in having refused to issue a summons to the zemindar of Mylavaram and (2) that he ought to have dismissed the complaint owing to the absence of the complainanjt. These are matters within the discretion of the Magistrate and I do not think these form grounds for revision.
7. As I am of opinion that the procedure of the Magistrate in refusing permission to the accused to re-call and further cross-examine the prosecution witnesses is erroneous, I set aside the conviction and sentences and order the fines, if paid, to be refunded. The Magistrate will try the case and dispose of it according to law. It is desirable that the same Magistrate should not try the case.