Judgment :- 1. The de facto complainant in a warrant case initiated by the police being aggrieved by the judgment of acquittal has filed this revision petition. 2. Originally there were two accused. Second accused died when the case was pending in the trial court. According to the prosecution first accused refused to advance loan of Rs. 500/- sought for by P. W.1 through exhibit A2 letter dated 9-3-1982 and hence first accused entertained ill-will against her. Oh 6-1-1983 at 10 a. m. the two accused jumped over the locked gate of the compound of P. W.1 and her father P. W. 2 and when hearing the noise P. W.1 opened the front door they trespassed into the front room. Second accused slapped her on the face and she fell down. First accused with an iron rod hit her four times and snatched away the gold chain from her neck. P. W. 2, who was at that time standing in the southern courtyard of the house heard the commotion and rushed to the scene. P. W. 3, maid servant, who was in the Kitchen also rushed to the scene. First accused with an iron rod hit P. W. 2 on the back and second accused slapped P. W. 3 on the left cheek and kicked her on the abdomen. P. W. 2 went inside, took an iron rod and beat first accused. Hearing the commotion neighbours gathered and accused ran away. The injured were taken to Medical College Hospital, Alleppey. The next day, on receipt of intimation, P. W. 8, H. C. of Police, Alleppey Town North Police Station went to the hospital and at about 11 a. m. recorded Ext. P1 statement of P. W.1 and registered a case against the two accused. It appears the two accused also sustained injuries in the occurrence and were taken to the same hospital. P. W. 8 recorded the statement of first accused and registered a counter case against P.Ws 1 and 2. S. I. of Police, P. W.12 continued investigation. Accused 1 and 2 were arrested on 20-1-1983 when they were discharged from the hospital. C. I. of Police, P. W.11 verified the investigation and laid the charge. 3. Prosecution examined the three injured P.Ws 1 to 3 and four other eye witnesses, P.Ws 4 to 7. Of them, P.Ws 5 to 7, were declared hostile and then allegedly 'given up'. C. I. of Police, P. W.11 verified the investigation and laid the charge. 3. Prosecution examined the three injured P.Ws 1 to 3 and four other eye witnesses, P.Ws 4 to 7. Of them, P.Ws 5 to 7, were declared hostile and then allegedly 'given up'. The defence summoned P. W. 5 and examined him as D.W.1. The defence case was that no part of the occurrence had taken place inside the compound or the house of P.Ws 1 and 2, that there was no snatching of the gold chain, that the incident took place in the road outside the compound when first accused was walking along the road and was attacked by P.Ws 1, 2 and others, local people gathered and a clash took place in which various persons were injured. D.W.1 supported the defence version. The trial court held that the prosecution version has not been proved beyond reasonable doubt and accordingly acquitted the first accused. The acquittal is now challenged. 4. The evidence has been placed before me. According to the prosecution, P.Ws 1 to 3, were taken to the hospital the same night. The medical evidence shows that they reached the hospital between 11 a m. and 12 noon the next day. P.W.8, on receipt of information from the hospital claims to have gone to the hospital to take the statement of P.W.1 at 11 a. m. F.I.R. reached the court only three days later. P.W.3 did not have injuries. The injuries on P.Ws 1 and 2 are not fully consistent with the version of occurrence given by P.Ws 1 to 4. The trial court has elaborately considered the evidence and highlighted the serious discrepancies in the evidence of P.Ws 1 to 4 and the contradiction between F. I. statement and the evidence of PW1. P.Ws 2 to 4 claim to have seen the entire occurrence. P.Ws 2 to 4 were attracted to the scene by the cries of P.W.1. It is extremely doubtful if they could have seen the entire occurence, as they claimed. P.W.4 is shown to be a domestic servant of P.Ws 1 and 2, though he tried to suppress his connection with them. His explanation for his presence appears to be highly artificial. Injuries on the accused were not properly explained. In fact they were attempted to be suppressed. P.W.4 is shown to be a domestic servant of P.Ws 1 and 2, though he tried to suppress his connection with them. His explanation for his presence appears to be highly artificial. Injuries on the accused were not properly explained. In fact they were attempted to be suppressed. F.I.R. in the counter case and the wound certificates relating to the two accused have been suppressed. 5. On a consideration of the evidence and circumstances of the case it cannot be said that the appreciation of the same by the learned Magistrate was perverse or unreasonable warranting interference with the acquittal. 6. The next ground urged by the learned counsel for the revision petitioner is that the court below committed an illegality in recording the evidence of DW-1 and the illegality has vitiated the trial. DW-1 is none other than P.W.S. P.Ws 5 to 7 are alleged to be eye witnesses. Their depositions show that oath was administered to them and they were examined-in-chief. Several sentences have been recorded in chief examination. All these eye witnesses stated that they did not see the occurrence and thereafter at the request of the Prosecutor they were declared hostile. The common endorsement made by the court below in the three depositions reads: "Witness declared hostile and given up." They were cross-examined. Accused were not called upon to cross-examine them. It is argued by the learned counsel that in view of the proviso to S.243(2) of the Code, P.W.5 should not have been allowed to be examined as defence witness. 7. S.243 of the Code deals with evidence for defence. Sub-s. (1) states that after the prosecution evidence is over accused shall be called upon to enter upon his defence and produce his evidence. Sub-s. (2) states that 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 examination 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 is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing. The proviso to Sub-s. (2) reads: "Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice." 8. It will be useful in this context, to refer to S.243, which deals with evidence for prosecution. The Magistrate, may, on the application of the prosecution, issue summons to any of it's witnesses to attend or to produce any document or any other thing and on the date fixed, shall proceed to take all such evidence as may be produced in support of the prosecution. The proviso to sub-s. (3) states: "Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross examination." 9. Proviso to S.242 (3) enables deferring cross-examination of prosecution witnesses until any other witness or witnesses have been examined; it also enables recall of any witness for further cross-examination. In other words, in appropriate cases, cross-examination can be deferred and done at a later stage; even where cross-examination has not. been deferred and in fact has been done, the witness can be recalled for further cross-examination. S.243 (2) enables accused to apply to the Magistrate inter alia, for process for compelling attendance of any witness for the purpose of examination or cross-examination. The Magistrate shall issue such process unless the request deserves to be refused on the ground, recorded in writing, that it is made for the purpose of vexation or delay or for defeating the ends of justice. When accused enters upon his defence, he has the right to examine defence witnesses and for that purpose he can seek help of the court to secure the presence of witnesses by issue of process. This right is recognised in sub-s. (2) of S.243. This provision also confers on accused the right to seek help of the court in securing presence of prosecution witnesses for the purpose of cross-examination. This involves the right to further cross-examine prosecution witnesses after accused enters upon his defence. Sub-s. (2) itself lay down ground on which the right to summon defence witness or to summon prosecution witness for cross-examination can be negatived. This involves the right to further cross-examine prosecution witnesses after accused enters upon his defence. Sub-s. (2) itself lay down ground on which the right to summon defence witness or to summon prosecution witness for cross-examination can be negatived. If the court considers that the request of the accused for issue of process is made for the purpose of vexation or delay or for defeating the ends of justice, the request has to be rejected. Where the accused does not seek the help of court by issue of process to witness, sub-s. (2) and the limitation in sub-s. (2) will not apply. If the witness is present in court, accused can certainly examine him. 10. The proviso to S.243(2) has no application to a request by the accused for issue of process to a defence witness; it applies only to a request for issue of process to a witness to appear for cross-examination. In the latter case, attendance of I the witness cannot be compelled if the accused has already cross-examined or had the opportunity of cross-examining him before entering upon his defence, unless the Magistrate is satisfied that it is necessary for the ends of justice. The proviso will have no application if the witness is present since the embargo is only against compelling attendance of a witness. The purpose of the embargo is to avoid abuse of process of court by seeking to delay the completion of trial or otherwise cause vexation. Even if accused had cross-examined the witness already or had opportunity to cross-examine him but did not utilise the opportunity, court can compel attendance if it is necessary for the ends of justice. The proviso can apply only if the witness has already been examined as prosecution witness (or even as court witness). If a person had not been examined before the accused enters upon his defence, the question of cross-examination would not have arisen and the proviso would not apply; such a case would be governed by sub-s. (2) and not the proviso. 11. I find from the records that on behalf of the accused memo seeking issue of process to DW-1 was filed in court with notice to the Asst. Public Prosecutor and summons was issued by the court. 11. I find from the records that on behalf of the accused memo seeking issue of process to DW-1 was filed in court with notice to the Asst. Public Prosecutor and summons was issued by the court. In the absence of anything to the contrary appearing in the records, I take it that the Magistrate was satisfied that issue of summons was necessary to meet the ends of justice. Hence there has been no violation of the proviso to S.243(2), even assuming that the proviso applies. 12. The court is naturally concerned at the peculiar procedure adopted by the learned Magistrate. P.Ws 5 to 7 were examined as prosecution witnesses. They were put in the witness box and oath was administered to them. Chief examination was conducted and several answers given in chief examination were recorded. After eliciting several answers and after such answers were recorded, the Prosecutor sought permission to put questions in the nature of cross-examination and permission was granted. This is clear from the order seen in the depositions to the effect "witness declared hostile". The Code does not contemplate any witness being "declared hostile". The Indian Evidence Act also does not contemplate any witness being "declared hostile". However, as a matter of practice, when one party requests for permission to cross-examine his own witness that is treated as request to treat the witness as hostile and permission is granted as such. The effect of declaring or treating a witness as hostile is that the side which has called him may put him questions which may be put in cross-examination by the adverse party. After declaring the witness as hostile, the court was certainly not justified in recording "witness given up". 13. A party which calls a witness may'give up' the witness, that is to say, refrain from examining him in court as a witness; that is the privilege of the party who calls the witness. At what stage is the witness to be given up? Before a witness enters the witness box he can be given up. Even when a witness enters the witness box and oath is administered to him, it is not too late and he can be asked to withdraw from the witness box. But once chief examination is commenced, the party who calls him cannot give up the witness or withdraw him and opposite party has the right of cross-examination. Even when a witness enters the witness box and oath is administered to him, it is not too late and he can be asked to withdraw from the witness box. But once chief examination is commenced, the party who calls him cannot give up the witness or withdraw him and opposite party has the right of cross-examination. If the right of cross-examination is denied to the opposite party, the evidence of the witness is of no avail. Once chief examination commences, the question of 'giving up' the witness does not arise. Apparently in some courts in the State there is a practice of the prosecution 'giving up' witnesses after the commencement of chief examination. This is a practice which is unhealthy, irregular and not warranted by any law. The practice of 'giving up' witnesses after the commencement of chief examination is contrary to S.138 of the Indian Evidence Act, which states that "witness shall be first examined in chief, then, (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined". It is clear that once a witness is examined in chief, adverse party has a right of cross-examination and the party who called the witness cannot 'give up' the witness so as to deprive the opposite party of the right of cross-examination. 14. It is pointed out by learned counsel that Prosecutors sometimes put witnesses in the witness box and tender them for cross-examination with a view to avoid an argument that important witnesses have been kept away from the witness box. Tendering witnesses for cross-examination is not consistent with S.138 of the Indian Evidence Act. Such a procedure is not sanctioned by law and has to be depreciated (See Hansa v. State of Kerala (1966 KLT 136)). 15. I find no ground to interfere and dismiss the revision petition.