A.H. Khan, J.
1. Prem Chand Kashyap resident of Lashkar was cited as a witness for prosecution in Criminal Case No. 286 of 1954, pending in the Court of the Additional District Magistrate, Shivpuri. He did not appear in spite of the Service of summons, whereupon, the learned Additional District Magistrate, issued notice to him to show cause why he should not be punished Under Section 485-A of the, Criminal Procedure Code. After service of the show cause notice, he was fined Rs. 25/- by an order dated 23-4-1958. Against this order, Prem Chand Kashyap filed ait appeal before the Additional Sessions Judge, Shivpuri, who held that the trial Court had no power to impose the fine without first trying the witness summarily and set aside the conviction and sentence. Aggrieved, by this order of acquittal, the State of Madhya Pradesh has now filed this appeal Under Section 417 of the Criminal Procedure code and the prayer is that the order of the learned Additional District Magistrate Shivpuri, sentencing Prem Chand Kashyap to a fine of Rs. 25/- be confirmed.
2. There is no doubt that Section 485-A which has been newly inserted in the Code by Section 90 of the Code of Criminal Procedure (Amendment) Act of (1955) empowers a criminal court to impose fine on a witness for disobedience of the summons, but before passing a is fence of fine, the Court has to observe two things: first, a notice must be served on the offending witness to show cause why he should not be punished under the section. Two, that before actually imposing a fine, the Court should follow the procedure prescribed for summons cases in the trial of witnesses. In other words it should summarily try the witnesses. This has not been done in the case. The trial Court was manifestly in error in imposing a fine without summarily trying the respondent. The learned Additional Sessions Judge has rightly set aside the conviction and sentence.
3. It has been stated in the memo of appeal that the Additional Sessions Judge, Shivpuri, was not competent to entertain the v. appeal, because the sentence awarded, was one of a mere fine of Rs, 25/-. This submission is made probably on the basis of Section 413 of the Criminal Procedure Code, which lays down that no appeal shall lie against the judgment of a First Class Magistrate, where the fine imposed does not exceed Rs. 50/- only. But Section 486, Cr. P. Code overrides the provisions of Section 413, and, an appeal is expressly provided to a higher court in cases where a court imposes fine Under Section 485-A, Cr. P. Code.
4. The learned Government Advocate has. requested us to send the case back for summary trial. Mr. J. P. Shrlvastava learned Counsel for the respondent has stated that the respondent later on did appear before the Court, and, has been also examined in the case. We find that these proceedings were taken in a case of 1954, and that the failure of the witness to appear was as far back as 1957. In the circumstances, we are not inclined to send the case back for retrial.
5. For reasons stated above, the State appeal is disallowed.