1. The main point taken is that the Magistrate having issued process under Section 257, of the Code of Criminal Procedure to certain witnesses who had been already examined as prosecution witnesses and were evidently cited as defence witnesses for the purpose of further cross examination was not entitled in law to refuse to allow the accused to cross-examine them. As the Magistrate issued process I must take it that he did not consider that the application to summon those witnesses was vexatious. He may have refused cross-examination on the ground that the defence could not cross-examine witnesses summoned by the accused, but that is not clear.
2. Section 257 of the Code of Criminal Procedure allows an accused to summon witnesses for the purpose of cross-examination and I.do not read it as meaning that the accused must necessarily state in his application for process whether he wants the witnesses for examination or for cross-examination. It is for the Magistrate to enquire into the accused’ s purpose if he thinks the application may be vexatious. As he had issued the process. I do not think the Magistrate was justified in refusing to allow the witnesses to be dealt with for the purpose for which the accused wanted them to be summoned. He therefore committed what was at least an irregularity.
3. Now owing to a previous refusal to adjourn to allow cross-examination of the prosecution witnesses these witnesses were not cross-examined after the charge, and I cannot hold that the accused were not prejudiced by the Magistrate’s irregularity in procedure. The case is not a serious one and I do not think a retrial is called for. Accused have probably already suffered sufficient punishment in the expenses of their defence and anxiety.
4. I set aside the conviction and sentence passed on them and direct that the fines if paid be refunded.