DESAI, J. - (1.) This is an appeal by the State against the order of acquittal passed by the Judicial Magistrate, First Class Tarikere, on 15-3-1978 in Criminal Case No. 460/77 on his file.
(2.) The facts relevant for the determination of the points at issue may be brifly stated is follows : A charge-sheet was filed against the respondent for offences punishable under Ss. 341 and 324 I.P.C. on 29-4-1977. When the accused appeared after the service of summons, the learned Magistrate satisfied himself that the documents referred to in sub-sec. (5) of 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to to as the New Code") had been furnished to him and by his order dated 25-8-1977, held that the material on record indicated the offences punishable under S. 341 and 323 I.P.C. only and decided to follow the procedure for trial of summons cases and adjourned the case for recording the plea of the accused to 12-9-1977. On 12-9-1977 the accusation for offences punishable under Ss. 341 and 323 l.P.C. was put to the accused and the accused pleaded not guilty and claimed to be tried. Then, the case was posted on 19-10-1977 for hearing. The prosecution had not kept its witnesses present on that day and the case was adjourned to 12-12-1977 at the request of Assistant Public Prosecutor. On 12-12-1977, the Magistrate was on leave and the case was adjourned to 18-1-1978. On that day also, it appears, the prosecution had not kept any witnesses present. On 18-1-1978 also, the prosecution had not kept any witnesses present and the case was adjourned to 27-2-1978 at the request of the Assistant Public Prosecutor. On 27-2-1978 also, the witnesses were not kept present, and the case was adjourned to 15-3-1978 with a direction to the prosecution to keep all the witnesses present on that day without fail as it was an old case On 15-3-1978, none of the prosecution witnesses were present. The Assistant Public Ptosecutor filed an application for the issue of summons to the witnesses stating that he had issued a memo to the PSI to keep the witnesses present and that the witnesses were not present as they were out of station. The learned Magistrate rejected that application and acquitted the accused, obviously, in exercise of his powers under S. 255 of the new Code.
(3.) The learned State Public Prosecutor argued that as the prosecution witnesses could not be present being out of station, the request of the Assistant Public Prosecutor for issue of summons to the witnesses was just and reasonable and the learned Magistrate ought to have granted it. Secondly, he urged that even if the reasoning of the learned Magistrate is taken to be correct, he ought to have applied the provisions of S. 258 of the New Code and released the accused instead of acquitting him under section 255 of the new Code since no evidence has been recorded.;