1. This is a reference made by the learned District Magistrate, Goalpara, in a case filed by one Md. Shamsher Ali Sarkar against one Abdul Mazaffar Hussain, under Section 407, Penal Code in the Court of Mr. S. K, Bhattacharjee, Senior Extra Assistant Commissioner, Goalpara, who acquitted the accused Abdul Muzaffar Hussain on 19-2-49 by his order which is in these terms:
Accused is not available as he is reported to have left for Pakistan and he Is not available. Under the circumstances, accused is acquitted.
2. The learned District Magistrate points out that as far back as 21-1-1948, the trying Magistrate framed a charge against the accused under Section 407, Penal Code, and that the absence of the accused on 19-2-49 and dates prior thereto was not a ground for acquitting him. The learned District Magistrate rightly points out that it was the duty of the trying Magistrate to have taken all necessary steps to secure the attendance of the accused by resorting to the appropriate provisions of the Code of Criminal Procedure.
3. It is plain that the only section which empowers a trying Magistrate to acquit an accused person after a charge has been framed against him is Section 258, Criminal P.C. The trying Magistrate has not acted or purported to act under Section 258, Criminal P.C. which empowers a Magistrate to acquit an accused person only when he finds him not guilty of the offence with which he is charged.
4. We accordingly set aside the acquittal, and remand the case, with directions to the trying Magistrate to take appropriate steps under the Code of Criminal Procedure, or any other law for the time being in force for the attendance of the accussds and to dispose of the case according to law.
Ram Labhaya, J.
5. I agree.