JUDGMENT : S.K. Ray, J. - The complainant is the Petitioner. On the footing of his complaint, cognizance was taken of offences under Sections 323 and 379, Indian Penal Code. The procedure that was to be followed was undoubtedly the warrant-procedure. Prosecution witnesses were examined on 5-9-1967 and the charges were framed on 11-11-1967. Then the case was posted to 4-12-1967 for cross-examination of witnesses. The case was adjourned from day to day till 4-3-1968, when the magistrate passed the following order: Accused Krushna Maharana and the R.L. present. Complainant is absent on repeated calls. No steps taken by the complainant. The evidence of the prosecution witnesses is expunged. To 21-3-1968 for accused statement and defence. Accused as before. 2. It may be noted here that during all the previous adjourned dates, viz., 4-12-1967, 5-1-1968 and 9-1-1968, no prosecution witness had in fact been present in Court. The complainant filed an application then for recalling the order dated 4-3-1968 by which the evidence of the prosecution witnesses had been expunged, and to take steps for summoning the prosecution witnesses for cross-examination. He also indicated that he would produce them in Court. He stated in his application that he could not be present on 4-3-1968 due to illness and supported that averment by a medical certificate. The magistrate has rejected this application of the complainant holding that the Petitioner, if he was ill, should have sent information either to Court or to his counsel of his illness. It is a dereliction of duty on his part for having omitted to do so, and he should not take the benefit out of such dereliction. The second ground was that even though a warrant-trial was indicated, in which it was the duty of the Court to summon the prosecution witnesses for cross-examination, the complainant having taken upon himself the responsibility for producing them must be held thereby to have desired that the magistrate should not discharge his duty as enjoined upon him by law, and cannot now turn round and take a stand that it was the duty of the Court and not his, to produce witnesses for cross-examination. 3. It appears from the order under revision that the magistrate was aware of the legal position u/s 256, Code of Criminal Procedure, and the ratio decidendi of a decision of this Court reported in Bharata Rona Vs. Rama Nahak. 3. It appears from the order under revision that the magistrate was aware of the legal position u/s 256, Code of Criminal Procedure, and the ratio decidendi of a decision of this Court reported in Bharata Rona Vs. Rama Nahak. This was a case where the evidence of the prosecution witnesses was expunged because they were not produced by the complainant in Court for cross-examination. That case has laid down the following propositions: (i) In a warrant case after the charge is framed, It 18 the duty of the magistrate u/s 256 to recall the prosecution witnesses on the next date so as to enable the accused to cross-examine them. Where the offence is a cognizable one, the complainant is not bound to pay the process fee for summoning the witnesses. (ii) Where the Court does not take steps to enforce the attendance of the prosecution witnesses for cross-examination on the next date and the witnesses are not present in Court for the date fixed for cross-examination, expunging of their evidence from the record on the ground that the complainant was not vigilant in prosecuting the case is not justified. (iii) In the case of official witnesses, the Court should realise that it would not be possible for the complainant to secure their attendance, and should issue summons on them through official channel, for their appearance in Court on the date fixed for their cross-examination. It was further pointed out in this case that the Magistrate should, once a witness appears in Court and is examined in Chief or cross-examined before charge, take a P. R. bond from him for his appearance before Court when next required. But where the complainant himself undertakes to produce the witnesses for the purpose of cross-examination, and does not need the help of the Court for his production, there is no necessity to take a P.R. Bond from him. But it is desirable to expressly question the complainant on this point and note in the order-sheet whether he undertakes to produce the witness himself or he wants the Court to Summon them, and whether P.R. bonds should be taken from them. The learned Chief Justice who delivered the judgment in this case, pointedly drew the attention of all Courts to the observations made in the case of Saghir Uddin Vs. Mt. Munni and Others. The learned Chief Justice who delivered the judgment in this case, pointedly drew the attention of all Courts to the observations made in the case of Saghir Uddin Vs. Mt. Munni and Others. The relevant observations in that judgment were as follows: A duty is cast on Magistrate to recall the prosecution witnesses for cross-examination as required by Section 256. The duty of procuring their attendance cannot be laid on the shoulders of the complainant. But if a complainant undertakes to produce his witnesses himself in the Court, and thereby prevents the Magistrate from issuing summonses against them, it would not be right to hold him responsible for their absence. Unless the Magistrate is prevented from discharging his statutory duty by a specific representation of the complainant in Court, the complainant cannot be penalised for the fault of the Magistrate in neither summoning the witnesses, nor binding them down for appearance. In such a case, when the complainant is also absent, the proper course for the Magistrate is to adjourn the case and ask the accused as to which of the prosecution witnesses he wishes to cross-examine and to summon them. Instead of doing that, if the Magistrate expunges the evidence of the prosecution witnesses, or acquits the accused, he would be acting illigally. 4. I have gone through the order-sheet in this case. I do not find of any record in the order-sheet of the complainant's undertaking to produce the prosecution witnesses which would have amounted to preventing the Magistrate from discharging his statutory duty u/s 256, Code of Criminal Procedure. The learned Chief Justice who decided the Orissa case, referred to above as long ago as 1960, specifically pointed out to the Magistrates that it is always advisable to take a P.R. Bond from the witnesses for appearance in Court at the next sitting. In face of this salutary direction of the Court, the magistrate who commenced the proceeding in this case on 12-6-1967 by taking cognizance, did not act in accordance therewith. In face of this salutary direction of the Court, the magistrate who commenced the proceeding in this case on 12-6-1967 by taking cognizance, did not act in accordance therewith. The magistrate was alive to the position that in the present case the prosecution witnesses were not kept on P. R. Bond, but he drew an inference from the Petitioners filed by the complainant on the three adjourned dates, viz., 4-12-1967., 5-1-1968 and 9-2-1968, wherein the complainant stated that he could not produce his witnesses and wanted time for the same, that the complainant constructively undertook to produce the witnesses from time to time. The inference, to my mind, is clearly erroneous in face of the salutary instructions given to the magistrates by the learned Chief Justice in the case reported in Bharata Rona Vs. Rama Nahak. Absence of any record of each an undertaking in the order-sheet would lead to the only conclusion that the complainant never gave a specific undertakings, but wanted to assist the Court, as far as possible, in procuring the attendance of the witnesses for cross-examination. The magistrate's duty u/s 256, Code of Criminal Procedure is clear and categorical. This clear duty has been lightened by judicial interpretation that, in cases where the complainant gives a categorical undertaking which may be construed as inducing the Court Dot to discharge his duty, by taking upon herself the burden of producing the prosecution witnesses, the undertaking of the complainant must be recorded in the order-sheet. In the circumstances, the magistrate was wrong in drawing an inference of constructive undertaking by the complainant. If the magistrate is to be relieved from the burden of discharging his clear statutory duty laid upon him, it must be strictly within the limits of the judicial decisions referred to above. The only exception to the conditions is that the undertaking of the complainant must be recorded in the order-sheet. 5. In face of the principles laid down by the aforesaid decisions, the magistrate was wrong in laying the entire blame for non-production of witnesses on the shoulders of the complainant, and punishing him by expunging the evidence of the prosecution witnesses from record. 6. For myself, I would Bay that the statutory duty cast upon a magistrate u/s 256, Code of Criminal Procedure is mandatory, arid he is required to discharge the same in the interests of justice. 6. For myself, I would Bay that the statutory duty cast upon a magistrate u/s 256, Code of Criminal Procedure is mandatory, arid he is required to discharge the same in the interests of justice. After the prosecution witnesses are examined, the complainant fades from the picture Section 252, Code of Criminal Procedure deals with the production of evidence by the complainant. It also enjoins upon the magistrate to ascertain from the complainant or otherwise, the names of persons likely to be acquainted with the facts of the case, and to summon such of them as is necessary, to give evidence, as he thinks fit. Section 253 deals with the discharge of the accused. It is open to the magistrate to discharge the accused, if he considers the charge to be groundless at any stage, during the course of reception of the prosecution evidence or at the end of it. If the magistrate does not discharge the accused u/s 253, he is to frame charge u/s 254. u/s 255, the charge is to be read and explained to the accused who shall be asked to say whether he is guilty or he has any defence to make be may be convicted if he pleads guilty on his plea alone. This is the desertion of the magistrate either to accept his plea of guilt or to proceed with the evidence. Then comes Section 256. This section casts a duty upon the magistrate. After the charge is read to the accused and is explained and after he is asked to advance his plea, the magistrate is to obtain from the accused the names of prosecution witnesses which he wishes to cross-examine. When the witnesses are so named to the accused, they shall be recalled and produced for cross-examination after which they shall be discharged. Thereafter the prosecution may lead evidence of any remaining witnesses. On a plain reading of the various sections quoted above, there is no indication anywhere that the magistrate may be relieved of his statutory duty on any contingency whatsoever, far leas any undertaking given by the complainant to produce any witness. If any such under taking is to be given, that would be by way of aiding the magistrate in discharging his duty, but cannot confer any exemption on him in the matter of discharge of his duty. If any such under taking is to be given, that would be by way of aiding the magistrate in discharging his duty, but cannot confer any exemption on him in the matter of discharge of his duty. However, since a view has been taken in this Court that in certain circumstances, the complainant taking upon himself the burden of producing the prosecution witnesses, may suspend the operation of Section 256, I would like to limit this exception strictly. This case, as I understand to have been laid down by the learned Chief Justice, is that in order to make the undertaking effective, it must be endorsed in the order-sheet. In the present case, therefore, I cannot accept the conclusion of the magistrate that the complainant undertook to produce the witnesses, and there by prevented the magistrate from discharging his duty u/s 256. As the magistrate says there was no actual undertaking given, but he has spelt out the constructive undertaking on the footing of the complainant's conduct on the three adjourned dates. Therefore, it appears to me, that the magistrate has tried to expand the scope of the section as laid down in the Orissa case referred to above. In the circumstances the order of the magistrate cannot be sustained, and his orders dated 4-3-1968 and 21-3-1968 must accordingly be quashed. The magistrate is directed to issue summons to all or such of the prosecution witnesses whom the accused desires to cross-examine and dispose of the case in accordance with law from that stage. Since the order expunging the evidence of the prosecution witnesses has been set aside, such evidence must be treated as evidence on record. This revision is accordingly allowed. Final Result : Allowed