JUDGMENT 1. THIS appeal by the complainant under section 417 (3) of the Code of Criminal Procedure is directed against an order of acquittal passed by Mr. B. D. Banerjee, magistrate; First Class, Barasat, 24- Parganas in case No. C 180 of 1967. T 257 of 1967 2. THE facts shortly are as follows : on a complaint filed by the appellant against the accused respondents that the accused respondents demolished their hut on 23.3.67 causing loss to the extent of Rs. 400/- the respondents were summoned under section 421 of the Indian Penal Code. The learned Magistrate framed a charge against all the respondents under section 427 of the Indian Penal Code and thereafter fixed a date for appearance of the prosecution witnesses. After several adjournments the case was fixed on 16.8.72 for cross examination of the prosecution witnesses when the complainant applied for an adjournment with a medical certificate. The learned Magistrate rejected the prayer holding that the conduct of the complainant was far from satisfactory and the case was an old one. As no prosecution witnesses were produced for cross-examination the learned magistrate thought that their evidence was of no value and found all the three accused persons not guilty of the charge end acquitted them under section 258 (2) of the Code of Criminal Procedure. Hence this appeal with special leave. Mr. Sudhir Ranjan Khastagir, along with Mr. Jahar Lal Roy, learned advocates appeared for the appellant and challenged the order of the learned Magistrate as erroneous and relied on two decisions of the Division Bench of this Court. Mr. Khastagir contended that after the learned Magistrate framed a charge it was the duty of the learned Magistrate to proceed under section 256 of the Code of Criminal Procedure and in ease the accused persons wanted to cross-examine the witnesses he should have taken steps to secure their attendance. But before doing so the court was not entitled to acquit the accused. 3. But before doing so the court was not entitled to acquit the accused. 3. IN the case of (2) Nutbehari sarkar v. Saroda Prasad Choudhury (37 C.W.N. 712) it was pointed out by this Court that after a charge had been frame in a warrant case the Magistrate was not entitled to record an order of acquittal under section 258 of the Code of Criminal Procedure because of the absence of both the complainant and the accused on the ground that the matter might have been compromised between the parties. Such an order it was pointed out was erroneous. The decision was followed in a later case of the Calcutta High Court in (1) Bepin Beiari maity v. Paban Sarkar and others (A.I.R. 1951 Calcutta 418) where it was held that even if the complainant and his witnesses were not present the Magistrate was bound to ask the accused persons in the manner provided in section 256 of the Code and if the accused wanted to cross-examine any of the witnesses it was his duty to take steps to secure their attendance. Before doing so the court was not entitled to hold that the accused did not have an opportunity of cross-examining (he witnesses and the evidence on record should be expunged for that reason. In the circumstances the order of the learned Magistrate acquitting the accused must be held to be illegal and is accordingly liable to be set aside. The appeal, therefore, succeeds. The order of the learned Magistrate acquitting the accused persons is set aside and the case is sent back or retrial by some Magistrate. Appeal allowed.