• Prosecution witness not coming for cross examination

In a criminal private complaint, in Judicial Magistrate court, a witness on behalf of complainant gave witness against the accused. But he is not coming again for cross examination by accused lawyer. Hearing postponed nearly 9 times for want of appearance of that witness for being cross examined.

Now, the advocate of complainant requests to send summon to his witness who is refusing to come for cross examination. The learned Magistrate refuses to send summon stating it is a private complaint and the witness is complainant own witness.

Now, please clarify whether the accused can request to set aside the evidence and statement given by that prosecution witness and pls reply with sections and case laws.
Answer I received :until unless witness is not cross examined his statement is of no use.

Follow up question; under which section we can request honourable JM to set aside the deposition of one the witness for not coming for cross examination