JUDGMENT : S. Acharya, J. - This revision is against the order dated 24-2-1967 passed by a Magistrate 1st Class, Cuttack, refusing to summon a defence witness on the ground that the defence refused to disclose the necessity and the relevancy of examining the said witness. 2. The defence after examining one d.w. wanted to summon one Govinda Mohapatra, the son of the complainant, through Court. Steps to secure his attendance were taken by issuing summons, bailable warrant, and later non-bailable warrant of arrest. At last on 24-2.1967 by the impugned order the Magistrate closed the defence by refusing to issue further process against the above named witness. It is worthwhile quoting the relevant portion of the impugned order to appreciate its legality and propriety: The case has undergone as many as ten adjournments for defence evidence. At the stage, at least, I want to know in what way the evidence of this boy is material to this case. The defence lawyer states that he wants to elicit certain facts from the boy which will help the case of defence but refuses to disclose the nature and particulars of the evidence he wants to adduce through this boy. In other words, the defence lawyer is not prepared to convince the Court as to why and with what justification this boy should be summoned or brought under arrest from Jajpur. I think, no witness need be summoned or examined until and unless the trial Court is satisfied that the examination is material and necessary for the ends of justice. What the lawyer plans in his mind is quite irrelevant to the Court. Since the lawyer refuses to convince the Court of the relevancy of the evidence sought to be elicited from the boy, I thin kit fit to close the case of defence. Later, after the aforesaid order was passed, the defence lawyer filed a petition stating that he had no objection to disclose to the Court the nature and particulars of the evidence he wanted to elicit from the above named witness, but he would not disclose the same in the presence of the prosecution lawyer. To the above the Court observed and ordered as follows: It is a peculiar position. There is no provision in the Code of Criminal Procedure to empower the Court to clarify matters from the defence lawyer only in the absence of the prosecution lawyer. To the above the Court observed and ordered as follows: It is a peculiar position. There is no provision in the Code of Criminal Procedure to empower the Court to clarify matters from the defence lawyer only in the absence of the prosecution lawyer. The defence lawyer should convince the Court only in open Court where the opposite party has a right to be presented. So the fact remains that the defence lawyer refuses to disclose facts which the Court desires to know as regards the necessity and relevancy of the examination of the witness. Hence there arises no necessity to summon that witness or to await the N.B.W. issued against him earlier. Recall the N.B.W. put up on 4-3-1967 for judgment. Accused as before. 3. Mr. Mohanty, the learned Counsel for the Petitioners, challenged the impugned order, in effect, on the grounds that Section 257, Code of Criminal Procedure does not contemplate that the Magistrate should be told the nature and the particulars of the evidence to be adduced through the defence witness, sought to be examined in the case; and that the Magistrate in this case having previously exercised his jurisdiction to secure the attendance of the said witness, had certainly been satisfied about the necessity of examining that witness for the defence, and so he, by the impugned order, should not have reviewed his previous decision to this effect. Strictly speaking, the Magistrate in acting under the first paragraph of Section 257, Code of Criminal Procedure is not justified to enquire about the particular of the evidence expected from the witness. Of course under the proviso to Section 257(1), if the accused has cross-examined or had the opportunity of cross-examining any witness after the charge is framed, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the purposes of justice. The Magistrate, acting u/s 257(1) for compelling the attendance of any witness at the instance of the accused, shall have to issue such process, unless he considers that the prayer to that effect is made for the purpose of vexation or delay or for defeating the ends of justice. In order to ascertain that there is no such purpose, the Magistrate may like to know the general ?nature? and ?the necessity and the relevancy? of the evidence expected from such a witness. In order to ascertain that there is no such purpose, the Magistrate may like to know the general ?nature? and ?the necessity and the relevancy? of the evidence expected from such a witness. The two orders passed on the 24th February 1967, show that the Magistrate was not really keen in knowing the ?particulars? of the evidence to be adduced by the said witness. The Magistrate wanted to know the ?nature? ?the necessity and the relevancy? of the evidence in order to ascertain as to "why and with what justification this boy should be summoned or brought under arrest", and this enquiry evidently was to consider if the defence prayer to this effect was for the purpose of vexation etc. though it was not expressly stated so in the impugned order. 4. I am unable to subscribe to the bald proposition advanced by Mr. Mohanty that the Magistrate, having earlier issued professes for securing the attendance of a witness to be examined at the instance of the defence, is found to compel his attendance in any case, and is not entitled to review his decision even though he is later satisfied that the purpose for insisting on the attendance of that witness was to cause vexation or delay or for defeating the ends of justice. Mr. Mohanty, to support his contention, cited the decision reported in AIR 1935 Allahabad 6381, which is to the effect that u/s 257, Code of Criminal Procedure the Magistrate cannot arbitrarily limit the number of defence witnesses; that a Magistrate may refuse to issue process for the appearance of the witnesses when he considers the application to he for the purposes of vexation, delay or for defeating the ends of justice but in such a case the grounds for refusing to summon them shall be recorded in writing; and that "Having summoned them, however, he must be presumed to have concluded that they are not being produced by the accused for the purpose of vexation or delay, etc;, and therefore ha should hear them, and in any case he must record his reasons for not hearing them, in writing." The other case cited by Mr. Mohanty is reported in AIR 1949 FC 62. Mohanty is reported in AIR 1949 FC 62. The relevant portion of the decision is to the effect that the language of Section 257, Code of Criminal Procedure is imperative and the trial Court has no discretion under which to refuse to issue process to compel the attendance of a witness cited by the accused after he has entered upon his defence, unless it is of the opinion that the application should be refused for any of the reasons which have been specified in the section and which it is found to record. There is nothing in both the above decisions to show that the Magistrate, having once issued process to a particular defence witness, has absolutely no jurisdiction to examine on a later occasion whether the insistence of the defence to secure the attendance of the witness was for the purpose of vexation or delay or for defeating the ends of justice. I am of the opinion that no such limitation should be placed on the lawful exercise of the Magistrate?s power and discretion in the administration of justice. 5. There is nothing on record in this case to show that the Magistrate before 24.2.1967 had ever applied his mind to consider if the prayer to summon this witness was for the purpose of vexation or delay or for defeating the ends of justice. On the contrary, it appears that the Magistrate without any consideration whatsoever, in an automatic manner issued process to secure the attendance of this witness on all the ten previous occasions. At last, as inordinate delay was occasioned due to the non-appearance of this witness, be sat down to enquire as to the real purpose of the defence in insisting on the attendance of this witness. Under such circumstances, it was the duty of the defence lawyer to satisfy the Court about the genuineness of his prayer and that the same was not for the purpose of vexation or delay for defeating the ends of justice. The defence lawyer, as it appears from the impugned order, took a non-co-operative attitude and did not allow the Court as to ?why and with what justification this boy should be summoned or brought under arrest. The defence lawyer, as it appears from the impugned order, took a non-co-operative attitude and did not allow the Court as to ?why and with what justification this boy should be summoned or brought under arrest. The statement of the defence lawyer merely to the effect that he wanted to elicit certain facts from the boy was certainly not sufficient to enable the Court to arrive at a decision for which the enquiry was made. 6. The defence seeks to examine the son of the complainant who is said to be a young boy of 12 years, and by the time of the impugned order as stated therein he was ailing for a long time. On a previous occasion the complainant filed a petition stating that the defence deliberately delayed the progress of the case by summoning this witness ill his wrong address. It is not known if any of the processes issued by the Court was ever actually served on this witness. The case had to be adjourned for about ten times only to secure the attendance of this witness alone. The Magistrate under the circumstances wanted to know ?in what way the evidence of the boy is material to this case?. In effect therefore this enquiry was justifiably made only to ascertain if the defence prayer to secure the attendance of this witness was for the purpose of vexation or delay or for defeating the ends of justice. Later on the same day the defence lawyer filed a petition stating that he had no objection to disclose the nature and the particulars of the evidence to be elicited from this boy witness, but at the same time he did, not like to disclose all that in the presence of the prosecution lawyer. There is no sanction in law for the stand taken by the defence lawyer in this matter. The Court cannot secure clarification and/or information of anything whatsoever confidentially or secretly from one party, expressly excluding the presence of the other party from the Court, and so the stand taken by the defence lawyer was not justified and/or legal. 7. On the above considerations and discussions the impugned order cannot be set aside. The Court cannot secure clarification and/or information of anything whatsoever confidentially or secretly from one party, expressly excluding the presence of the other party from the Court, and so the stand taken by the defence lawyer was not justified and/or legal. 7. On the above considerations and discussions the impugned order cannot be set aside. However, the Court may, if properly approached by the Petitioner, once again suitably and legally exercise its discretion in this matter, and proceed to dispose of this case in accordance with law, as expeditiously BS possible. The revision is dismissed with the above observations. Final Result : Dismissed