Jaganmohan Reddy, J.
1. This is a reference by the District and Sessions Judge, Aurangabad for setting aside the order of discharge passed by the Additional Magistrate, Aurangabad. The accused was charged under 8. 379, I. P. C., for an offence alleged to have been committed on 6-9-1951, regarding which a challan was filed on 16-1-1952 along with a list of four witnesses whom the prosecution proposed to examine. On a perusal of the proceedings it appears that the learned Magistrate directed the issue of summonses to the witnesses on 31-1-1952. There after five adjournments were taken, viz., on 18-2-1952, 1-3-1952, 15-3-1952, 5-4-1952 and 18-4-1952 to serve the summonses on the prosecution witnesses, the Magistrate ordering, each time fresh summonses to be issued to them Because neither the summonses were returned, nor were the witnesses produced. On 2-5-1952, Fazullah the Investgating Officer and Maheswaram, Registrar of the P. B. College at which the theft had taken place, were examined.
Thereafter the learned Magistrate directed issue of bailable warrant for Mohd. Osman and posted the case to 13-5-1952 on which date the warrant was not even returned by the police. Again the Magistrate directed issue of warrant to that witness and directed that the address of Syed Vazir be furnished by the police by the next date of hearing. We find that on 26-5-1952 the Magistrate has noted that the address of the witness was not furnished and the warrant of the other witness was not returned. He, therefore, directed the police to bring the witnesses themselves. On the next date of hearing, viz., 6-6-1952, no witnesses were produced and the Magistrate again issued warrants to be served on the witnesses. The proceedings of 21-6-1952 show that these warrants were not returned duly served. In these circumstances on the evidence which he had already recorded he directed the accused to be discharged as the prosecution had failed to prove a prima facie case against the accused.
2. The learned Government Advocate contends that the Magistrate cannot under Section 253, Cr. P. C., direct a discharge unless he has examined all the witnesses whom the prosecution wants to examine. We may observe that a warrant case may arise in two ways, viz., either on a challan, in which case, the witnesses have already been bound over to appear by the police on the date of the trial, or on a complaint, in which case the complainant may bring witnesses with him on the date fixed for trial. It is, therefore, clear that the first part of Section 252, Cr. P. C., refers only to such evidence as is offered on the day when the accused appears or is brought before the Court, This case was initiated on a challan and the accused was produced, but the prosecution witnesses were neither bound over to appear by the police, nor were they present. Even where it is necessary to adjourn the case, the responsibility for such witnesses is upon the police whose duty it was to have bound over the witnesses before the challan was filed.
There is, in our view, no doubt that, if all the witnesses were present on behalf of the prosecution, the Magistrate should examine them before discharging the accused; but where the police fail to serve the summonses and do not furnish addresses of witnesses, nor even execute bailable warrants, the Magistrate is left helpless, in that the machinery for serving process or warrants in criminal cases is through the police channel. If the police, as the agency of the court for effective service of summonses and execution of warrants as laid down in Section 68 of Cr. P. C., does not diligently discharge this duty, the Magistrate is perfectly justified in considering the evidence which he has already recorded as being the evidence in the case and discharging the accused. It is too much to expect the Magistrate to wait indefinitely and it is equally unjust to expect that the accused should have a criminal charge pending against him for an indefinite period of time.
3. This is a typical case which demonstrates the cause for delay in dispensing criminal justice speedily, attributable mainly to lack of diligence on the part of the police, who neither bind over the witnesses before filing the challan, nor serve summonses or execute warrants on them, nor produce them themselves before the court for having their evidence recorded within the date or dates fixed for hearing. It is for the authorities concerned to take appropriate action for remedying such defects and to ensure effective prosecution of criminal cases.
4. In the circumstances adverted to above, we cannot accept the reference made by the learned District & Sessions Judge and accordingly reject it.