N.K. Sen, J.
1. This Rule is directed against an order of acquittal passed by Shri S.K. Ghosh, Magistrate 1st Class, Alipur, on the 26th November, 1957 under Section 251-A (11) of the Code of Criminal Procedure. The main argument in support of this Rule is that the learned Magistrate, having framed a charge, should have exhausted all processes for attendance of witnesses in proof of the charges.
2. In order to understand this argument it is necessary to set out certain dates. On the 14th of January, 1955 a complaint was filed before the Sub-Divisional Magistrate, Alipore, against the opposite parties alleging offences under Sections 143 and 379 of the Indian Penal Code. Upon this the learned Sub-Divisional Magistrate ordered the police of Joynagar police station to take cognisance and to treat the petition of complaint as the 'First Information Report' in the case. Thereafter following an investigation a charge-sheet was filed on the 28th March,1955 against the opposite parties under Sections 143and 379 of the Indian Penal Code. Then on the 16th of September, 1957 charges were framedagainst the opposite parties and 25th and 26th November, 1957 were fixed for the production of the prosecution witnesses. Neither on the 25th nor on the 26th of November, 1957 were any witnesses onbehalf of the prosecution present. On the 26thNovember, 1957 the learned Magistrate acquittedtile opposite parties under Section 251-A (11) of the Code of Criminal Procedure, as he held that therewas no point in proceeding to examine the oppositeparties under Section 342 of the Code of CriminalProcedure, and since there was no evidence in support of the charge, they were all accordingly acquitted.
3. In the present rule Dr. Das Gupta argued that the learned Magistrate acted illegally and without jurisdiction in passing the order of acquittal without enforcing attendance of the witnesses. This argument is apparently based on the several decisions on the rights of a Magistrate to acquit without complying with Sections 256 and 257 of the Code of Criminal Procedure.
4. This argument is based on a total mis-conception of the amended section, i.e. Section 251-A, under the provisions of which the present trial was being held. This trial was in accordance with the procedure to be adopted in cases instituted on police report. Under Sub-section (4) of Section 251-A the charge was to be read and explained to the accused who shall then be asked whether he is guilty or claims to be tried. Under Sub-section (5), if the accused pleaded guilty, the Magistrate was to record the plea and the Magistrate may in his discretion convict him thereon. Then comes Sub-section (6) which provides as follows :
'If the accused refuses to plead, or does not plead, or claims to be tried, the Magistrate shall fix a date for the examination of witnesses.'
Sub-section (7) is in the following terms :
'On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution.'
5. It will be observed that under Sub-section (7), on the day fixed all prosecution evidence produced shall be taken. Under the former procedure i.e. before the amendment came into force as laid down under Section 252 and the following sections, the Magistrate had a duty to ascertain the names of the prosecution witnesses and to summon them. It is to be observed that there is no analogous provision in Section 251 (A) to the effect that it would be a duty of the Police Officer in charge to apply for the summons and to produce them. In the present case, the opposite parties claimed to be tried when the charges were read over and explained to them. 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. We are, therefore, of the view that in a case tried under Section 251 (A) of the Code, the Magistrate was not compelled as he was if the case was tried as a warrant case instituted other than on the police report to proceed in terms of Sections 256 and 257 of the Code.
6. Mr. Rabindra Nath Chakravarty who has appeared on behalf of the State has placed before us an application purported to have been made by the Court Sub-Inspector stating the reasons why the witnesses could not be present on the date. It appears that this application was filed before the learned Magistrate after the order of acquittal was passed by him.
7. The case was instituted as far back as January, 1955. It went through various vicissitudes upto the 26th of November, 1957. The police in charge of the prosecution could not or did not produce any witnesses in support of the charge. In our view, the learned Magistrate was perfectly right in acquitting the accused persons and thereby saving them from further harassment and troubles. In our view, justice demands that this order of acquittal should be allowed to stand.
8. The result is that this revisional application is dismissed and the relative Rule is discharged.
Das Gupta, J.
9. I agree.