P. Govinda Menon, J.
1. This is an appeal filed by the State against the Order of acquittal passed by the Addl. Sub-Magistrate of Ponkunnam in C. C. No. 68 of 1960. The charge against the accused was that on the night of 5-11-1959 he broke open the lock of a shop room belonging to the 1st informant. Ho was caught red-handed and entrusted to the police. The police after investigation charge-sheeted the accused. The learned Magistrate on a perusal of the records under Section 173, Cri. P. C. framed charges against the respondent accused under Sections 457 and 380 read with Section 511, I. P. C. and posted the case for evidence.
2. Originally it was posted to 22-4-1900. On that day the prosecutor and the accused were pre-sent but the witnesses were not present, sO the case was adjourned to 11-5-1960. On that day when the case was called the accused and two witnesses were present. The prosecutor was not present. It is stated in the appeal memorandum that the Head Constable who was in charge of the case had left the court with the permission of the Magistrate. Whether it is true or not, it is admitted that the prosecution witnesses were present in court. The Magistrate however did not examine the witnesses actually present in court, but acquitted the accused on the ground that there is no prosecutor to examine the witnesses. He held that mere presence of the witnesses without anybody to examine them would not amount to producing the witnesses within the meaning of Clause 7 of Section 251-A and acquitted the accused under Section 251-A Clause 11.
3. The order is clearly wrong, perverse and unsustainable in law. Reference in this connection may be made to the decision reported in State of Kerala v. Gopalan, 1960 Ker LT 774 : (AIR 1962 Kerala 3) and the Bench decision in State v. Aboobaker, 1960 Ker LT 1142. If the Magistrate could not examine the witnesses present in court he ought to have adjourned the case. Clause 7 enjoins on the Magistrate to take all evidence thatnay be produced. Merely because the prosecutoris absent, the accused cannot be acquitted. TheMagistrate has also the duty to see that justice isdone in a case. The acquittal is therefore set aside.There will be a retrial of the case by some otherMagistrate.