1. This is an appeal filed by the State against an order of acquittal passed by the Presidency Magistrate, 21st Court, Bandra, Bombay, in Crl. Case No. 1455/P of 1955. The two accused John Joseph D'Souza and Achuta Kupa Sherigara were charged before the learned trial Magistrate with having committed an offence under Section 65(b) read with Section 81, Bombay Prohibition Act 25 of 1949. The offence was triable as a summons case.
The proceedings before the learned Magistrate were commenced by a charge-sheet filed by the Inspector of Police, N. P. S. Bandra, 'X' Division, on 11-11-1954. Thereafter the proceedings were adjourned from time to time and even on 11-4-1955, the Panchas were not present. The learned Magistrate issued summons to the Panchas and adjourned the proceedings to 22nd April, 1955. On that day also the Panchas were not present because they were not served.
Sub-Inspector Ranpise was, however, present and the Police Prosecutor requested for time. The learned Magistrate rejected the application and proceeded to acquit the accused for want of evidence /and cancelled the bail bond of the accused. It is against the order of acquittal passed by the learned Presidency Magistrate that the State has preferred an appeal.
2. In our view, the learned trial Magistrate's order is in law erroneous. The proceedings having been commenced by a charge-sheet, Section 247, Criminal P. C. did not apply. Again the complainant was present in the Court. The learned trial Magistrate had, therefore, to record the plea of the accused and thereafter to record evidence] for the prosecution if he was not minded to grant an adjournment in view of the long delay since the institution of the proceedings.
But he could not proceed to acquit the accused forthwith without following the procedure prescribed for trial of summons cases. We have looked at the record of the learned Magistrate end them is nothing to show that he recorded the plea of the accused even. In our view, the learned trial Magistrate had no jurisdiction to dispose of the case in the manner that he has done.
As the procedure followed by the learned trial Magistrate is erroneous and even though the offence is triable as a summons case, the offence charged is a serious offence, we think there are substantial and compelling reasons for setting aside the order of acquittal passed by the learned trial Magistrate.
3. Before parting with the case, however, we must observe that the prosecution must attempt to keen witnesses present on the dates fixed for hearing and if the prosecution does not keep witnesses present, the Court, would be justified in refusing to adjourn the proceedings and would further be if justified in proceeding with the case forthwith and in recording the evidence of such of the witnesses as are present.
In this case it would have been open to the learned Magistrate, after refusing to adjourn the proceedings as requested by the Police Prosecutor, to record the plea of the accused and to examine such of the witnesses for the prosecution as were present. We may point out that the accused were arrested on 11-11-1954. and for more than five months nothing had been done.
It would tend to considerable harassment to accused persons if time after time the, Prosecutor applies for adjournment of proceedings on the ground that the witnesses for the prosecution are not present.
4. The appeal will be allowed and the order of acquittal passed by the learned presidency Magistrate set aside and the learned Magistrate is directed to proceed with the case according to law.
5. In view of the order passed by us, there will be no order in Criminal Revision Application No. 1188 of 1955.
6. Appeal allowed.