(1) The State has filed this appeal against the Order acquitting the respondent from a charge under S. 379 I. P. C. It appears the learned Magistrate took cognizance of the case on 12-3-1963 and framed a charge under S. 379, I. P. C. against the accused, who pleaded not guilty and claimed to be tried. Then the case was posted to 25-3-1963 for evidence. On that day, A. P. P. II was on leave, although it appears that some of the prosecution witnesses were present. On 9-4-1963 the case was adjourned on the prayer of the defence and it was posted to 25-4-1963 on which date the respondent was absent. On 6-5-1963 the Magistrate issued summons to P. Ws. 2 to 5, 7 and 8 and ordered that the rest of the prosecution witnesses should be produced. On 13-5-1963 the prosecution witnesses were not present. The summonses also were not returned. Then the A. S. I who was present at the time undertook responsibility to produce the prosecution witnesses at the next hearing of the case, which was posted to 27-5-1963. On this date of hearing, none of the prosecution witnesses were present and therefore the Magistrate acquitted the accused under S. 251A(11), Cr. P. C. read with Rule 39 of the Criminal Rules of Practice. It is a warrant case and the learned counsel appearing for the Public prosecutor contends that even if no witness was present at the date of hearing, it was for the Magistrate to compel their presence and proceed with the case and he was not justified in acquitting the accused, when there was no witness either for the prosecution or for the defence.
On the other hand, Smt. Seethamahalakshmi relies on a ruling of the Calcutta High Court in Smt. Jyotirmoyee Bose v. Birendra Nath, : AIR1960Cal263 in which the learned Judges of that Court took the view that sub-sec. (6) of S. 251-A, Cr. P. C. does not enjoin upon the Magistrate any duty to compel the attendance of any witness, unless it was applied for. The learned Judges have also observed that there is no provision like Ss. 256 and 257 of the Code under which a Magistrate is bound to compel the presence of the witness if asked for by the person on trial. I respectfully disagree with that view. Once the Magistrate takes cognizance of the case, I think it becomes his bounden duty to go to the root of it and do justice in the matter. The Criminal Procedure Code has given very wide powers to the Magistrate only with a view to clear any possible obstacle in the way of the Magistrate to do justice in a case. Taking cognizance of a case means that the Magistrate prima facie is satisfied that the offence has been committed and in such a situation it is necessary for the Magistrate to find out who the culprit is and in this process he must adopt every method available to him under law for coming to some decision. If the prosecution is slack and neglectful in its duties, it does not follow that the Magistrate also should fall in line with it. If the persons conducting the prosecution feel disinclined to conduct the prosecution, in that case they can very easily get their cases dismissed by mere default. In this view, I think, if the Assistant Sub-Inspector of Police had failed to produce the witnesses on the date of hearing, it was for the Magistrate to compel their attendance to dispose of the case according to law. I think the Magistrate should exhaust all his powers before he makes up his mind to dismiss the case.
(2) Accordingly, this appeal is allowed and the Magistrate is directed to proceed with the case and dispose it of in accordance with law.
(3) Appeal allowed.