Order.- This is a reference under section 438, Criminal Procedure Code, by the learned Sessions Judge, Kolar, recommending that the order of the learned Special First Class Magistrate, K.G.F. dated 19th November, 1965 passed in C.C.No. 3566 of 1964, by which he rejected the prayer of the accused to recall the witnesses for cross-examination, be set aside. The facts that have given rise to this reference are these: Muneppa (A-1) was one of the 9 accused in C.C. No. 3566 of 1964 on the file of the Special First Class Magistrate, K.G.F. The case against him was that he contracted a second marriage with A-2, abetted by A-3 to A-9 during the lifetime of his first wife Mangamma. A complaint was preferred in this behalf by Mangamma and on the date the complaint was preferred, the statement of Mangamma was recorded by the learned Magistrate. The case was taken on file and action was taken for securing the attendance of the accused persons. The accused appeared in Court and thereafter five witnesses including the complainant were examined. On a cons deration of the evidence, the learned Magistrate framed charges against the accused on 18th October, 1965 under section 494 Indian Penal Code, against A-1 and A-2 and under section 494 read with sections 107 and 114 Indian Penal Code, against A-3 to A-9. The charges were then read over and explained to the accused and they were asked whether they were guilty or they had any defence to make. The accused pleaded not guilty and claimed to be tried. The case was posted to 28th October,. 1965 for evidence. There is nothing to indicate that the Magistrate on the date he framed the charges, ascertained from the accused whether they wished to cross-examine any, and if so which of the witnesses for the prosecution already examined. On 28th October, 1965, the complainant as well as the accused prayed for an adjournment on the ground that their Counsel were not present. This was granted and the case was adjourned to 8th November, 1965, on which date the case was adjourned by the Court for being called on 19th November, 1965. On that day an application was made on behalf of the accused for recalling all the witnesses examined before the charges were framed for further cross-examination. This was granted and the case was adjourned to 8th November, 1965, on which date the case was adjourned by the Court for being called on 19th November, 1965. On that day an application was made on behalf of the accused for recalling all the witnesses examined before the charges were framed for further cross-examination. That application was rejected on the ground that the accused had lost their right of recalling the witnesses for cross-examination. The question for consideration is whether the learned Magistrate was justified in rejecting the prayer of the accused to recall the witnesses for further cross-examination. Section 256 Criminal Procedure Code, lays down the procedure to be followed after framing of charge. That section reads as follows: “256(1). If the accused refuses to plead, or does not plead or claims tobe tried, he shall be required to state at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and if so, which of the witnesses for the prosecution whose evidence has been taken. If he says he does so wish the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any) they shall be discharged. The evidence of any remaining witnesses for the prosecution shall next betaken, and, after cross-examination and re-examination (if any) they also shall be discharged. The accused shall then be called upon to enter upon his defence and produce his evidence. (2) If the accused puts in any written statement the Magistrate shall file it with the record.” It is clear that the object of the section is to secure the accused the opportunity of cross-examining the witnesses for the prosecution after he has been informed as to the nature of the specific charge which he is required to answer. Sub-section (1) makes it obligatory on the Court to require the accused to state, whether he wishes to cross-examine any and if so, which of the witnesses for the prosecution, whose evidence has been taken. The fact that the accused has been required to state what he wishes and whatever he actually states, whether on the next hearing or on the same day, should be recorded. The fact that the accused has been required to state what he wishes and whatever he actually states, whether on the next hearing or on the same day, should be recorded. But the absence of such statement on record may not be a sufficient basis for holding that no enquiry was made from the accused or that he did not state that he wanted to examine the prosecution witnesses. The fact that the accused did not waive his right under section 256 can be evidenced from the order of the Magistrate, passed when framing the charge, fixing a date for cross-examination. The provisions of this section are imperative and failure tofollow the procedure is an illegality. As stated earlier, there is no indication in the records that after the charge was framed in this case against the accused, the Magistrate questioned the accused person whether they wanted to cross-examine any, and, if so, which of the witnesses for the prosecution. It is clear from the order sheet that after the charge was framed and after the accused pleaded not guilty of the charge and claimed to be tried, the case was posted to the next date, for requiring the accused to state whether they wished to cross-examine any, and, if so, which of the witnesses for the prosecution, whose evidence has been taken. On the dates following, the case was adjourned for one or the other reasons and when the accused filed an application on the next date of hearing when the case was ready, requesting the Magistrate to recall the witnesses for cross-examination, the Magistrate was clearly in error in rejecting that application on the ground that the accused persons had lost their chance. The Legislature intended to give the accused persons against whom charges are framed an interval of time to think out the lines of defence before they are called upon to inform the Court how they intended to proceed. In cases where the Magistrate wants to proceed to question the accused after recording the plea of the accused the same day, he has to record in writing the reasons for questioning the accused immediately. In all other cases, the case will be adjourned to another date in order to afford an opportunity to the accused to think over the line of defence and then state their case. In all other cases, the case will be adjourned to another date in order to afford an opportunity to the accused to think over the line of defence and then state their case. The right of cross-examination given to the accused under this section is an absolute right and the learned Magistrate has no power to deprive the accused of that right of recalling the witnesses for cross-examination. In Khunni Chhanua and others v. State1, it has been pointed out that under section 256 after the charge is framed it is obligatory on the Magistrate to recall the witnesses named by the accused for cross-examination. The right of cross-examination granted in section 256 is an absolute right and the Magistrate has no power to disallow it. In my opinion, refusal to allow an opportunity for cross-examining the witnesses has occasioned a failure of justice. Therefore, I set aside the order of the learned Magistrate. The learned Magistrate is directed to proceed with the case from the stage the accused were called upon to enter into their defence under section 256 Criminal Procedure Code and the accused be given an opportunity to cross-examine the prosecution witnesses and then dispose of the case according to law Reference accepted. S.V.S. ----- Reference accepted.