B.Dayal, J. - (1.) This is a Government appeal against an order of acquittal passed by the Magistrate obviously under Section 251-A(11) Cri, P.C.
(2.) A charge-sheet was under Sections 147 and 325 I.P.C. was submitted against six persons on 23-9-1959. The case was registered on 1-12- 1959 and on 23-12-1959 the accused appeared. The accused were examined on 31-12-1959 and a charge was framed against them. The case was then adjourned for 21st, 22nd and 23rd of January, 1960, for recording of the prosecution evidence. When the case was called up for hearing on the 21st of January, 1960, the accused were present but on behalf of the prosecution, an application was made that the witnesses were not present and the hearing be adjourned. The ease was thereupon adjourned for the 22nd of January, 1960. Same thing happened on the 22nd of January, 1960 also and the case was fixed for the 23rd of January, 1960. On the 23rd of January, 1960 the Assistant Public Prosecutor moved an application that the witnesses were not present and the case be adjourned again. This prayer was granted and the case was fixed for the 13th of February. 1960. It may be noted that in the application which had been made by the Public Prosecutor on the 23rd of January, 1960 there was a prayer that the witnesses be examined and there was a note at the bottom thereof that P. Ws. 1 and 2 be summoned. No order was passed for summoning the witnesses and there is no reference to this prayer either in the English order or in the Hindi order passed on the order-sheet. On the 13th of February, 1960 when the ease came up for hearing, the A.P.P. made an application again stating that the witnesses had not arrived on account o Maghi Purnima and he asked for a fresh date. It is significant that in this application no grievance was made about the non-issue of summons. It was not stated that the witnesses could not arrive on account of the absence of summons by the Court. The Court granted the prayer and fixed the case for hearing on the 3rd of March, 1960. When the case came up for hearing on that date, the prosecution was unable to produce any witness and the Magistrate passed the order under appeal. The Magistrate has observed that the case was already three months old and the prosecution had not been able to produce any evidence about the alleged occurrence. As a result the accused were acquitted.
(3.) The contention of the learned counsel for the State is that the Court was bound to issue summons to call the prosecution witness on the 23rd of January, 1960 when the A.P.P. had made a prayer for that purpose and since the Court did not assist1 the prosecution in enforcing attendance do the witnesses, it was no fault of the prosecution and the case could not have been decided in the absence of the prosecution evidence. I am unable to agree with this contention of the learned counsel. In the first place it is clear from the record that the prosecution did not seriously press its demand for summoning its witnesses. A prayer was made in the application of the 23rd January but it appears to have been abandoned and no orders were passed in respect of that prayer and no grievance was made therefore either on that data or on the subsequent date when the fresh adjournment was sought. It cannot therefore be said that there was any genuine desire on the part of the prosecution to get its witnesses summoned through court.;