JUDGMENT 1. - This petition is directed against the order dated 25.10.90 Judicial Magistrate No. 3, Ajmer, in criminal case No. 2004/86. 2. The facts of the case are that the petitioner is facing trial in the aforesaid court of the learned Magistrate under section 16/54 of the Rajasthan Excise Act. Two witnesses, namely, Himmat Singh and Navratan Mal were examined by the prosecution but they could not be cross-examined as the learned counsel for the petitioner was held up in a Sessions trial. Thereafter, the statement of the accused was recorded under section 313 Cr.P.C. At the stage of production of defence evidence, the petitioner moved an application in the Trial Court under Section 243(2) Cr.P.C. with a prayer to call the prosecution witnesses, Himmat Singh and Navratan Mal for cross-examination as they could not be cross-examined at the earlier stage for the reasons mentioned above. The learned Trial Court rejected the said application simply on the ground that the counsel for the petitioner and the accused petitioner himself had an opportunity to cross-examine the witnesses at the earlier stage. but they did not cross-examine, as such the witnesses cannot be recalled for cross-examination. 3. Aggrieved against the said order, the present petition has been filed. Section 243 Cr.P.C. can be reproduced as under for the sake of convenience:- "243. Evidence for defence. - (1) the accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record. (2) 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 be recorded by him in writing; 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. (3) The Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court." 4. From the bare perusal of the aforesaid provisions it is clear that the court has power to call a witness for cross-examination. Under sub section (2) of Section 243 it is mandatory for the court to call a witness to cross-examine, if any such prayer is made by the accused unless the application is refused on the ground that it was made for the purposes of vexation or delay or for defeating the ends of justice. The provision to sub-section (2) further provides that if the accused had cross-examination 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. 5. It cannot be disputed that the witnesses, Himmat Singh and Navratan Mal, are material witnesses, being police personnel's and seized contraband article. In a case like the present one which only rests on the evidence of seizure and recovery of the articles. It is also not disputed before me that the aforesaid two witnesses could not be cross-examined by the learned counsel for the petitioner and an application has been given for calling them for cross-examination on the ground that they could not be cross-examined as the counsel for the petitioner was busy in some other case. 6. Though, it is true, that normally a witness should not be summoned again for the purposes of cross-examination, if the accused had an opportunity to cross-examine or had cross-examined, but if the absence of the cross-examination is likely to pre-judice the entire case, then such prayer for cross-examination should be allowed by the Trial Court specially when the lawyer of the accused was held up in another court for which the accused petitioner can have no control. Further, the accused should not suffer or made to suffer on account of non-appearance of his counsel for one reason or the other. 7. Further, the accused should not suffer or made to suffer on account of non-appearance of his counsel for one reason or the other. 7. I am of the view that in the present case both these witnesses, namely, Himmat Singh and Navratan Mal, are material witnesses and if the accused petitioner is not allowed to cross-examine them, he may be seriously pre-judiced thereby and it is in the interest of justice that the prayer of the accused petitioner to call the witnesses for cross-examination should be allowed. 8. Consequently, I allow this petition, set aside the impugned order dated 25.10.90 passed by the learned Magistrate. It is further ordered that the Trial Court shall issue process to seek the attendance of the prosecution witnesses, Himmat Smith and Navratan Mal, for the purpose of their cross-examination by the accused petitioner. The learned counsel for the petitioner undertakes that in case the notices are given dasti to him, then he will see that they are served upon. The learned counsel for the petitioner shall submit the addressed of the witnesses, Himmat Singh and Navratan Mal within a period of 10 days. *******