Page No.# 2/2 Judicial Magistrate has stated that the witness present was examined and because of his lack of knowledge about the facts of the case as well as irrelevant statements he made, he was not examined. Such content of the order is indicative of the fact that the said witness was examined but his evidence was not recorded, on oath, as he was saying that he did not know anything about the occurrence as well as for his making irrelevant statements. The fact remains that he was produced by the defence as witness, and therefore, he should have been examined, on oath, whether he knows anything about the occurrence or not. Whatever his statement may be, that should have been recorded, on oath, and ought to have been weighed only when the evidence by the defence are to be evaluated. That being so, the learned Chief Judicial Magistrate is erred in not recording the evidence of witness produced by the defence for the reasons indicated in his order, referred to above. On the other hand, learned counsel for the petitioner has submitted that as per the list of defence witnesses, he had few more witnesses who were not examined and the evidence of the defence was closed vide the impugned order. In accordance with the provisions of Section 243 Cr.PC, the petitioner ought to have applied before the court which the learned court would have granted had there been no ground for rejection of the same. But, there was no application for issuance of summons to the witnesses and they were also not present on the date of the defence evidence. Therefore, from the legality perspective, there is no such wrong in the order in not calling the remaining witnesses of the defence. However, since the witness present on the date was also not examined, it has given rise to a right of the petitioner to get the said witness examined, and if the said witness is examined, the petitioner be given a chance to examine the remaining witnesses also if produced, otherwise, the court has to resort the provisions of Section 243 Cr.PC.
