- (1.) A case under Section 457 I. P. C. was pending against the applicants in the Court of Sri Bhikha Lal Judicial Magistrate Deoband at Saharanpur. The case was started by the police on a report which was lodged with it by one Sarjeet on the allegation that in the night of 31st July and 1st of August 1962 a theft was committed in his house by breaking open the roof of a room. On 28-12-1962 charges were framed against the applicants under Section 457 I. P. C. and 11-11963 was fixed for prosecution evidence. On that date the witnesses did not turn up and the case was adjourned to 21-1-1963 on which date the witnesses for the prosecution were present in Court but the Assistant Public Prosecutor was not available to examine them. On that date the learned Magistrate passed an order in which he inter alia stated as follows: ''even today the A. P. P. is not vigilant and no witness out of the present ones is being examined before the Court. The prosecution is slack to this extent that it did not avail of three opportunities given for prosecution evidence. . . . . . It clearly reflects that the A. P. P. is remiss in his duty and the accused are being persecuted and harassed for no fault of theirs. . . . . . . . . . Under these circumstances I close the prosecution case. Let statements under Section 342, Cr. P. C. be recorded today".
(2.) SUBSEQUENTLY it appears that the Assistant Public Prosecutor filed an application for the examination of the prosecution witnesses under Section 540 Cr. P. C. On this application the following order was passed by the learned Magistrate on 5-2-1963: "though the prosecution has misused the opportunities yet justice and equity require that the prosecution be not condemned unheard and its evidence be taken under Section 540 Cr. P. C. "
(3.) COMPLAINANT Sarjeet and the accused, both, came up in revision before the learned Additional District Magistrate, the former challenging the order of the Magistrate closing the prosecution evidence and the latter impugning his order of 5-2-63 directing the prosecution witnesses to be examined under Section 540 Cr. P. C. The learned Additional District Magistrate has recommended that both the revisions should be allowed and the two orders passed by the learned Magistrate should be quashed.;