T.P. Mukerjee, J. - (1.) THIS is an appeal by the State from the order of acquittal of Moti and other Respondents passed by Shri S.B. Katiyar, Magistrate 1st Class, Jalaun at Orai, in Cr. Case No. 273 of 1966. The case against the Respondents proceeded on the basis of a police report and the procedure adopted by the learned Magistrate was that of the trial of a warrant case. The learned Magistrate recorded the statements of the accused on 13 -9 -1966 and on the same date framed charges against them Under Sections 148 and 323/149 IPC. The learned Magistrate then fixed the 3rd, 4th and 5th October, 1966 for examination of prosecution witnesses. None of the witnesses except Dr. R.S. Bharadwaj, Medical Officer attached to the male hospital at Kalpi turned up on any of the said dates. On behalf of the prosecution applications were filed before the learned Magistrate for taking coercive measures against the witnesses to secure their attendance in court for evidence. The learned Magistrate however, refused the prayer made on behalf of the prosecution in that regard. The Magistrate observed that it was the duty of the prosecution to have brought the witnesses and examined them in the case. Holding as above, the learned Magistrate acquitted all the 8 Respondents of the charges framed against them. Hence this appeal.
(2.) MR . Goel, learned Counsel for the State, submits that the order of acquittal passed by the learned Magistrate in the circumstances of the present case was manifestly illegal. He argued that Under Sub -section (6) of Section 251 of the Code of Criminal Procedure as amended by U.P. Act No. XXXI of 1961, a duty has been laid upon the Magistrate to summon the witnesses after he has framed charges against the accused persons under Sub -section (3) of the same section. If the witnesses for the prosecution do not appear in response to the summons issued by Magistrate there is ample power conferred upon him under the Code to compel their attendance to give evidence. Section 485A of the Code of Criminal Procedure empowers the Magistrate to punish such defaulting witnesses in a summary procedure. Section 485A lays down: (1) If any witness being summoned to appear before a Criminal Court is legally bound to appear at a certain place and time in obedience to the summons and without just excuse neglects or refuses to attend at that place or time or departs from the place where he has to attend before the time at which it is lawful for him to depart and the Court before which the witness is to appear is satisfied that it is expedient in the interests of justice that such witness should be tried summarily, the Court may take cognizance of the offence and after giving the offender an opportunity of showing cause why he should not be punished under this section, sentence him to fine not exceeding one hundred rupees. (2) In every such case the Court shall follow as nearly as may be practicable, the procedure prescribed for summary trials in which an appeal lies. Thus, non attendance by witnesses in obedience to summon issued by the Magistrate is an offence under Section 485A. This section was, evidently, introduced in 1955 with a view to compel the attendance of delinquent witnesses. In a warrant case a Magistrate would not be justified in acquitting the accused merely on the ground of non attendance of witnesses summoned by the prosecution. The Magistrate has to resort to the coercive measures provided for in the Code to compel their attendance. This is also the view taken by other High Courts. In the case of Public Prosecutor v. M. Sambangi Mudaliar and Ors. : AIR 1965 Mad 31, it was laid down in almost similar circumstances, that in warrant cases where the Court has already framed a charge under Section 251A Code of Criminal Procedure against the accused, an important duty is laid on it to see that all the powers available to the Court for examination of witnesses are exercised for a just decision of the case. In State of Bihar v. Polo Mistry and Ors. : AIR 1964 Pat 351, a single Judge of the Patna High Court has also taken the same view. In that case also charges were framed by the Magistrate on the basis of a police report against certain accused persons. Thereafter the Magistrate ordered that summons be issued for the appearance of prosecution witnesses No prosecution witness, however, appeared in response to the summons issued by the Magistrate. The Magistrate, therefore, acquitted the Respondents under Section 251A(ii) of the Code of Criminal Procedure. The State of Bihar thereupon preferred an appeal to the High Court against the order of acquittal. The learned judge set aside the order of acquittal of the accused persons and observed that where the prosecutor had taken recourse to the agency of the Court for securing attendance of prosecution witnesses, it is, undoubtedly the duty of the Magistrate to take steps for securing the attendance of the witnesses in his court. The learned Judge continued that, in such a else, it could not be held that entire responsibility for securing the attendance of prosecution witnesses lay upon the prosecutor alone and if the prosecutor is unable to produce the witnesses it is obvious duty of the Magistrate concerned to take all such measures as may be found necessary under the law to compel the attendance of the witnesses.
(3.) IN the present case the learned Magistrate should not have acquitted the accused persons merely because the prosecution was unable to produce the witnesses. The Magistrate should have allowed the prayers made on behalf of the prosecution to compel the attendance of the witnesses by coercive measures. The order of acquittal made by the learned Magistrate is clearly illegal and cannot be sustained. The appeal is, therefore, allowed. The order of acquittal is set aside and the case is sent back to the learned Magistrate to be disposed of in accordance with law.;