B. Dayal, J.
1. This is a Government appeal against an order of acquittal passed by the Magistrate obviously under Section 251-A(11) Cr, P.C.
2. A charge-sheet was under Sections 147 and 325 I.P.C. was submitted against six persons on 23-9-1959. The case was registered on 1-12- 1959 and on 23-12-1959 the accused appeared. The accused were examined on 31-12-1959 and a charge was framed against them. The case was then adjourned for 21st, 22nd and 23rd of January, 1960, for recording of the prosecution evidence. When the case was called up for hearing on the 21st of January, 1960, the accused were present but on behalf of the prosecution, an application was made that the witnesses were not present and the hearing be adjourned.
The ease was thereupon adjourned for the 22nd of January, 1960. Same thing happened on the 22nd of January, 1960 also and the case was fixed for the 23rd of January, 1960. On the 23rd of January, 1960 the Assistant Public Prosecutor moved an application that the witnesses were not present and the case be adjourned again. This prayer was granted and the case was fixed for the 13th of February. 1960. It may be noted that in the application which had been made by the Public Prosecutor on the 23rd of January, 1960 there was a prayer that the witnesses be examined and there was a note at the bottom thereof that P. Ws. 1 and 2 be summoned.
No order was passed for summoning the witnesses and there is no reference to this prayer either in the English order or in the Hindi order passed on the order-sheet. On the 13th of February, 1960 when the ease came up for hearing, the A.P.P. made an application again stating that the witnesses had not arrived on account o Maghi Purnima and he asked for a fresh date. It is significant that in this application no grievance was made about the non-issue of summons.
It was not stated that the witnesses could not arrive on account of the absence of summons by the Court. The Court granted the prayer and fixed the case for hearing on the 3rd of March, 1960. When the case came up for hearing on that date, the prosecution was unable to produce any witness and the Magistrate passed the order under appeal. The Magistrate has observed that the case was already three months old and the prosecution had not been able to produce any evidence about the alleged occurrence. As a result the accused were acquitted.
3. The contention of the learned counsel for the State is that the Court was bound to issue summons to call the prosecution witness on the 23rd of January, 1960 when the A.P.P. had made a prayer for that purpose and since the Court did not assist1 the prosecution in enforcing attendance do the witnesses, it was no fault of the prosecution and the case could not have been decided in the absence of the prosecution evidence. I am unable to agree with this contention of the learned counsel.
In the first place it is clear from the record that the prosecution did not seriously press its demand for summoning its witnesses. A prayer was made in the application of the 23rd January but it appears to have been abandoned and no orders were passed in respect of that prayer and no grievance was made therefore either on that data or on the subsequent date when the fresh adjournment was sought. It cannot therefore be said that there was any genuine desire on the part of the prosecution to get its witnesses summoned through court.
4. In the second place, it is important to note that the Legislature in 1955 changed the whole procedure applicable to cases instituted on a police report and a new Section 251-A was introduced. Section 252, Cri. P.C. was amended so as to exclude its operation to such cases. After this amendment, the only procedure applicable to cases instituted on a police report is one provided by Section 251-A Cri, P.C. This section nowhere provides that the public prosecutor may ask the Magistrate to summon his witnesses nor does it authorise the Magistrate to summon the prosecution witnesses either upon an application on behalf of the public prosecutor or suo motu for any reason.
Section 252 on the other hand imposes a duty upon the Magistrate to ascertain the names of the witnesses who could give evidence on the relevant points and to summon those witnesses in evidence1. By providing an entirely new procedure under Section 251-A Cri. P.C. in cases instituted by the police, the Legislature has deliberately departed from that procedure and in the new procedure has made no provisions for summoning of the prosecution witnesses.
In this section itself Sub-section (9) authorises the defence to make an application for the summoning of its defence witnesses and imposes a duty upon the Court to summon such witnesses except in rare cases. Thus the Legislature was alive to the necessity of summoning the witnesses and it deliberately avoided making any provision for the summoning of the prosecution witnesses on behalf of the police,
I do not, therefore, see any authority in law for the proposition that the public prosecutor can make an application for summoning of the prosecution witnesses and in such a case the Magistrate is bound to summon these witnesses and in the absence of issuing summons the Magistrate is unable to proceed with the case. The whole object of the section appears to have been that the police should be prepared to produce its witnesses when the case is called upon for hearing and it should not be permitted to take shelter behind the absence of witnesses on account of want of summons by the Court.
5. Learned counsel for the State relied upon an observation made in a Calcutta case reported in Smt. Jyotirmoyee Bose v. Birendra Nath : AIR1960Cal263 . In that case the public prosecutor did not pray for issue of summons and the Magistrate also did not issue any summons for the prosecution witnesses and disposed of the case in the absence of the prosecution witnesses by acquitting the accused. The order-of the Magistrate was Upheld by the Calcutta High Court and while upholding the order it was observed as follows:
Sub-section (6) of Section 251-A does not enjoin upon the Magistrate any duty to compel the attendance of any witness unless it was applied for. In a case tried under Section 251-A of the Code, the Magistrate is not compelled as he is if the case is tried as a warrant case instituted other than on the police report to proceed in terms of Sections 256 and 257 of the Code.
Learned counsel for the State relied upon the words 'unless it was applied for' and has contended that in ease the public prosecutor does apply for the issue of summons to the prosecution witnesses, the Magistrate is compelled to issue summons. These words were really obiter. All that the learned Judge meant to say was that in a case where no such application had been made, as in the case before them the Magistrate was not compelled to summon the witnesses.
They did not mean to say that in a case to which such a prayer was made, the Magistrate was compelled to summon the witnesses. In fact; this Calcutta case does not purport to decide what should have happened if a prayer had been made for summoning of witnesses by the public prosecutor. Considering the deliberate amendment by the Legislature, I am of the view that no power has been given by the Code for the public prosecutor to ask for issue of summons and compel the attendance of prosecution witnesses and does not authorise the Magistrate to issue such summons.
6. In the present case since there was no evidence before the Magistrate on the basis of which the Magistrate could hold the accused guilty, the Magistrate had no option but to acquit the accused and the order of the Magistrate is justified. The appeal is accordingly dismissed.