Full Judgment
Tyreell, J.
1. It is obvious that the trial of this case has been in all respects inadequate, and, so far as regards the evidence for the prosecution, only half completed. In view of the order that I must make in the case, I refrain from comment on the evidence on the record further than to remark that, as it stands, it would not be sufficient to prove that the accused had the stolen articles in their possession, so as to make them guilty under Section 411 of the Penal Code. It has not been established that the stolen goods were in such places that the accused must necessarily have been privy to their deposit there, or that the places are not equally accessible to other persons; but in the imperfect state of the record, it is impossible to say whether these defects in the proof of the case for the prosecution might or might not have been removed by the evidence which has been excluded. It is true that the rule of the Criminal Procedure, Code simply requires in general terms that the witnesses for the prosecution shall be called and examined before the accused is put on his defence, and contains no special prohibition of the exclusion of one or more of them from examination; but it does not require a rule stating in express terms that all the witnesses must be examined to indicate the necessity or propriety of examining all material witnesses sent up to the Sessions Court on behalf of the prosecution. It is the duty of the Public Prosecutor to call and examine all such witnesses, and the Judge is bound to hear all the evidence upon the charge. It is true that the Public Prosecutor is not bound to examine persons who will not, in his opinion, speak the truth or support the points he desires to establish by their evidence; but in such circumstances he should explain to the Court that this is his reason for not calling these witnesses, and he should offer to put them in the box for the cross-examination of the accused at their discretion. In the absence of any such explanation or of other reasonable grounds apparent on the face of the proceedings, inferences unfavourable to the prosecution must be drawn from the non-production of its witnesses. If, however, the witnesses in the present case are excluded only because the Public Prosecutor or the Court thought their evidence superfluous, it would still have been proper to tender them for cross-examination by the accused. In the state of the record indicated by the foregoing observations, it is obviously impossible to deal justly with the appeal; for, while there may not be sufficient evidence on the record to support the conviction, it is very possible that the Court has illegally excluded evidence which would have sufficed to prove the guilt of the accused, in which case the determination of the case as it stands might result in a deplorable miscarriage of justice.
2. Under these circumstances, it is necessary--and I make this order with great reluctance--to cancel all the proceedings in the Sessions Court, and to direct a new trial of the accused according to law with the least possible delay.