Judgment Ramratna Singh, J. 1. This appeal under Sec. 417(3) of the Code of Criminal Procedure is directed against an order of the Magistrate dated 23-9-1959, by which he acquitted the accused persons, i.e., the respondents, under Sec.258(I) of the Code, on the ground that the prosecution witnesses had not turned up on. that day for cross-examination. 2. The appellant filed a, petition of complaint on 5-12-1958 against the respondents, who were ordered to be summoned by the Sub-divisional Magistrate on 6-l2-l908. The trying Magistrate framed charges against the respondents on 20-7-l959 under Sections 143 and 379 of the Penal Code and fixed 4-8-1959 for cross-examination of the witnesses, as the accused claimed to be tried. The case was adjourned on 4-8-1959 to 24-8-1959 on the ground that the Magistrate was busy otherwise, though the complainant and five prosecution witnesses were present. On the next date, the case was adjourned to 7-9-1959 on the ground that the defence lawyer was busy otherwise, though the complainant was present with five witnesses. On the next two dates, i.e., 7-9-1959 and 8-9-1959, also the case was adjourned at the request of the accused persons, though the complainant was present on these dates with some witnesses On the next date, i.e. 23-9-1959, the complainant and his witnesses were absent, and the Magistrate acquitted the accused. The relevant portion of his order reads thus: P. W. 2 was X-exd., only and the other P. Ws have not been X-exd. In absence of the P. Ws. the evidence of the P. Ws. cannot be looked into until they are X-exd., and discharged. The evidence therefore is expunged and the accused persons are acquitted as there is no material on the record to find them guilty. The accused persons are therefore acquitted Under Sec.258(1) Cri. P.C. There has been no appearance on behalf of the respondents in this Court. 3 The learned Advocate for the appellant has contended that the order of acquittal was illegal for want of compliance with the provisions of Sections 256(1) and 258(1) of the Code. Sec.256(1) requires that, if the accused claims to be tried after the charge has been framed, he shall be required to state whether he wishes to cross-examine any witness, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. Sec.256(1) requires that, if the accused claims to be tried after the charge has been framed, he shall be required to state whether he wishes to cross-examine any witness, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. In the present case, the orders of the Magistrate do not indicate that he complied with this provision. The order dated 20-7-1959 merely states that the accused claimed to be tried, and 4-8-1959 Was fixed for cross-examination of the prosecution witnesses. Sec.258(1) lays down that if in any case in which a charge has been framed the Magistrate finds the accused not guilty, he shall record an order of acquittal. On 23-9-1959 the Magistrate had before him at least the evidence of one prosecution witness who had been cross-examined; but he acquitted the accused without discussing the evidence of even this witness. 4. The order of the Magistrate acquitting the respondents is manifestly illegal. It is provided in Sec.258 of the Code that if the accused informs the Court that he wishes to cross-examine any of the prosecution witnesses, the witnesses named by him shall be called, and after cross-examination and reexamination, if any, they shall be discharged. It has been held by this Court in Kunj Behari Yadav V/s. Basdeo Yadav 1957 BLJR 729 : AIR 1958 para 104 that this section casts the duty of calling such witnesses upon the Magistrate in the present case, as In that case, the learned Magistrate does not appeal either to have taken personal recognisances, from the prosecution witnesses to appear on 23-9-1959 or on any date after 20-7-1959 for their cross-examination, nor to have issued any summons upon them for their appearance. Thus, the learned Magistrate did not discharge his own duty of calling the witnesses for cross-examination. As it was not the duty of the complainant to bring witnesses, he could riot be penalised for the absence of the witnesses on 23-9-1959. 5. For these reasons, the appeal is allowed, the order of acquittal dated 23-9-1959 is set aside and the case is remanded for retrial according to law from the stage at which it was before that date.