H. Deka, C.J.
1. This rule was obtained by one Nathuram Darjee, at whose instance a case was started by the Police on a charge of theft against the two accused, Pannalal Agarwala and Ramgopal Agarwala. The order challenged is one dated 11th of October 1960 passed by the trial Magistrate by which the learned Magistrate purported to acquit the two accused under Section 258(1) of the Code of Criminal Procedure.
2. A charge under Section 379 of the Indian Penal Code was framed against both the accused persons and it appears that on 11th October 1960 both the accused were present in court but none of the prosecution witnesses were present. The prosecuting Sub Inspector made an application to the Court for adjournment of the case on the ground that none of the prosecution witnesses were present, and he prayed for fixing another date on which he undertook to produce the prosecution witnesses.
One of the accused persons, however, filed an affidavit on that day in the court to the effect that three of the important prosecution witnesses were seen in court and that it was not a fact that they were not present though, of course, none of the prosecution witnesses turned up on calls. The learned trial Magistrate drew an inference from the affidavit filed by the accused that the prosecution witnesses were deliberately avoiding to attend court whereby, the court presumed, the witnesses' sought to compel the court to adjourn the case. It was on this approach that the trial court refused to adjourn the case and passed the order under Section 258(1) of the Code of Criminal Procedure, as I have already indicated above, acquitting the accused persons.
3. Section 258(1) Criminal Procedure Code had no application to this particular case as that would apply only to warrant cases brought on complaint and not on Police report, which is covered by Section 251A of the Criminal Procedure Code. In this case Mr. Choudhary for the petitioner urged that the order of acquittal would come under Clause (11) of Section 251A and that provision required that where the charge was framed the magistrate could acquit the accused on a finding that he was not guilty. In this case the acquittal order does not amount to an order either in form or in substance passed under that provision. He accordingly challenged the validity of this order.
4. Dr. Medhi appearing on behalf of the accused-opposite party contended that the Magistrate had no other alternative but to 'requit the accused persons since there was no evidence on record on the basis of which a conviction could have been recorded. The order though passed In the form in which it stands actually meant that the accused were acquitted because there was no evidence against them. He further raised other points, to which we need not refer, namely as to the power for summoning witnesses by the court.
We do not think we should refer to all these contentions but we are satisfied on the other hand on the materials before us that the learned Magistrate was wrong in presuming that the prosecution witnesses either would not attend the court or sought to compel the court for an adjournment. In. this view of the things, we consider the order to be illegal and not passed according to law. We, therefore, set aside file order dated 11th of October, 1960 and direct that the case should proceed from the stage where it was on 11th of October, 1960, and. in case the learned Magistrate who passed the order is not there, the case should be tried by some other magistrate of competent jurisdiction,
G. Mehrotra, J.
5. I agree.