S.D. Singh, J.
1. I am afraid this appeal will have to be allowed. The Magistrate Mr. M.C. Singh has assumed in himself the powers which are at once arbitrary and against law.
2. The respondents were prosecuted by the Station Officer Police Station Bithoor. Kanpur, under Sections 147, 148 and 323 of the Indian Penal Code. The offence was tried as a warrant case to which the procedure prescribed under Section 251-A of the Code of Criminal Procedure was applicable. On 10th January, 1965 the Magistrate recorded the statement of the accused and framed charges against them under Sections 147 and 323 read with Section 149 of the Indian Penal Code. The charges were read over to the accused and they pleaded not guilty.
3. On 27th August, 1964, which was the date fixed for the hearing of the case, the prosecution examined two witnesses, Kalka and Bageshwar. Thereafter the Magistrate somehow formed an opinion that the prosecution case was false and without recording the rest of the evidence or examining the accused under Section 342 of the Code proceeded to write the judgment by which the accused were acquitted and against which this appeal has been filed by the Government.
It is surprising that the Magistrate did not have regard to the provisions of Section 251-A of the Code of CriminalProcedure and invented a short cut of his own for the disposal of the case before him.
5. When the case Instituted on a police report first comes before a Magistrate, he has jurisdiction under Sub-sections (1) and (2) of Section 251-A to record the statements of the accused, examine the documents referred to in Section 173 of the Code, hear the parties and then decide whether any charge was made out against the accused; and if he comes to the conclusion that it is not, he has jurisdiction to discharge them. But if after the statements of the accused are recorded, documents are examined and the parties heard, he frames a charge against the accused under Sub-section (3) of Section 251-A, reads and explains the charge to the accused and records their pleas under Sub-sections (4) to (6), then on the date to be fixed for the purpose he has to proceed 'to take all such evidence as may be produced in support of the prosecution' under Sub-section (7). There is no 'if' or 'but' in this sub-section. The language is plain and simple enough and there is no scope for the Magistrate to misunderstand his jurisdiction under this sub-section. It was, as such, incumbent upon him to take all such evidence as may be produced in support of the prosecution, much less could he close the prosecution evidence only after the first two witnesses had been examined.
6. It was contended on behalf of the respondents that the order passed by the Magistrate was within his jurisdiction but he has only used the word 'acquitted' instead of 'discharge'. That position is, however, not correct. As I have said earlier the Magistrate could discharge the accused before the charges were framed against them. Once the charges are framed, the procedure prescribed under the rest of Section 251-A has to be followed. The provisions of Sub-section (7) are mandatory and the Magistrate could not side-track the same.
7. I am supported in this view by a decision of the Rajastnan High Court reported in State v. Suwa, AIR 1962 Raj 134 and another of the Kerala High Court, State of Kerala v. Gopalan, AIR 1962 Ker 3.
8. The appeal is allowed. The acquittal of the respondents under Sections 147and 323 or Section 323 read with Section 149 is set aside. The case will go backto the trial court for re-hearing in accordance with law but it would now bedesirable for the case being heard bysome Magistrate other than Sri M.C.Singh, who has disqualified himself forhearing this case by expressing his opinion on incomplete evidence.