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TMI Blog1985 (12) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint was filed under Section 85 read with sections 8, 27 and 55 of the Gold (Control) Act. Both accused are goldsmiths. Inspection of their shop by the Superintendent of Central Excise was on 4-9-1981. As per Ext. P1 mahazar prepared by the Superintendent of Central Excise the accused were found in possession of 1114.150 grams of gold ornaments and primary gold in excess of what is shown in their register. It is in this background that they were prosecuted. 3. The prosecution witnesses were examined and both the accused were questioned under Section 313 of the Criminal Procedure Code. The accused were called upon to enter their defence and they filed a schedule of 28 witnesses with a petition to examine them. In that petition the Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses pledged gold ornaments with the accused." These two statements themselves will not go together. It was on this assumption that the Magistrate held that examination of all the witnesses is not necessary and three or four among them alone need be examined. 5. Section 243(2) of the new Criminal Procedure Code corresponding to Section 251-A (9) of the Old Code reads : "If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examinations or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... selected representatives from the witnesses alone need be examined. Refusal could be only on the above three grounds and the reasons are also to be recorded. When the court declines to issue process to witnesses without recording cogent reasons there is no fair trial and in such a case conviction cannot stand because it will be an illegality. It is for the accused to say what amount to evidence he thinks it proper to place on record on his defence and it is not for the Magistrate to say that examination of any witness is necessary or not for the defence. What the sub-section says is 'any witness', so that an accused who has not availed of an opportunity to cross-examine certain prosecution witnesses after a charge has been framed and hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may think of the merits of the appellants contention, they cannot be convicted without an opportunity being given to them to present their evidence, and that having been denied to them, there has been no fair trial, and the conviction of the appellants, S. K. Dutt, J. K. Bose and P.C. Ghosh cannot stand. The result may be unfortunate. But it is essential that rules of procedure conducive to ensure justice should be scrupulously followed, and courts should be jealous in saying that there is no breach of them. The appeals will be allowed, [and the appellants acquitted." 8. In this case the learned Magistrate has not found that any of the reasons mentioned in Section 243(2) of the Criminal Procedure Code is therefor the purpose of rejecting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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