Sudhamoy Basu, J.
1. This is a Reference under Section 438 of the Code of Criminal Procedure made by the Sessions Judge. Birbhum. The letter of reference recommends that an order dated the 5th May. 1971 passed by Sri R. N. Saha Magistrate, Second Class. Ram-purhat. in G. R. Case No. 147 of 1968 be set aside and that the learned Magistrate be directed to take necessary-steps for enforcing the attendance of prosecution witnesses who accepted summons and then to dispose of the case according to law.
2. In the case under reference which involves a charge under Sections 325/379 of the Indian Penal Code, the trial seems to have been a protracted one. Although the charge was framed by the learned Magistrate on 28-1-69 it was adjourned from time to time. On the 3rd October. 1969. four witnesses were present, but the learned Magistrate was busy and the case was again adjourned to 19-1-70. On the said date also the case was adjourned to -31-3-70 when two witnesses were examined and the case was further adjourned to 15-6-70. On that day. although the hazira for three witnesses was filed, the matter could not be taken up for hearing and the case was again adjourned to 31-7-70. After further adjournment to 23-11-70 the learned Magistrate only examined one witness. The next date for hearing was 3-3-71 but the learned Magistrate was busy and as such the case was again adjourned to 5-5-71 when the impugned order was passed The said order runs as follows;
All the accused persons are present. No hazira of witnesses received, though the witnesses accepted the summons. So it is useless to keep pending this case any further for the examination of witnesses. Issue summons on I. O. only for examination. To 14-6-71 for examination of I. O. Accused as before.
3. The question involved is of considerable importance and general concern. After the amendment of the Code of Criminal Procedure by the amending Act XXVI of 1955. provision for a separate procedure exclusively for trial of warrant cases, instituted on a police report, has been made in Section 251-A. Cr.PC The object is to ensure expedition in warrant cases so that the accused may be either quickly discharged if there is no case against him or the trial may be brought to an end speedily by acquittal or conviction. No duty is cast upon the Magistrate, prima facie, to ascertain from the complainant or otherwise the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for prosecution, nor is there any mandatory provision that he 'shall summon to give evidence before himself such of them as he thinks necessary.' as is to be found in Section 252 (2), Cr.PC which applies in cases instituted otherwise than on a police report,
4. A decision of the Division Bench of this High Court in the case of State of West Bengal v. Narayan Rao. : AIR1968Cal512 was cited at the Bar. It was held that the order of acquittal made by the Magistrate without further compelling the attendance of witnesses could not be assailed. About -the facts of that case it was observed:
even a cursory reference to the order-sheet would convince one that the same is replete with so many prayers of adjournment on the part of the prosecution resulting in a considerable delay in the ultimate disposal of the case. It is passing strange that the case has been dragged on from 1964 to 1967 upon one ground or other. Justice delayed is justice denied and having regard to the aforesaid background of the case, we do not think that the order of acquittal can be assailed on the ground that it is premature.
5. It was. however, observed that both the sections namely Sections 252 (2) and 251-A. Cr.PC appeared in the same Chapter of the Code, namely, Chapter XXI. and accordingly the rule of prudence enjoins that the discretion of the court be exercised by proceeding under Section 540. Cr.PC to compel the attendance of such witnesses in a flt and proper case whenever deemed necessary, instead of disposing of the matter summarily.
6. It has already been noted that unlike Section 252 of the Code of Criminal Procedure. Section 251-A imposes no obligation compelling a Magistrate to summon witnesses who may speak to the facts for the prosecution, to give evidence before himself. Sub-section (7) of Section 251-A only provides that
from the date so fixed the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution, provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.
The Magistrate thus is to take all such evidence as may be 'produced' in support of the prosecution. There is nothing esoteric about the word 'produced' which sometimes causes confusion in this context. Witnesses may be 'produced' before a court by the prosecution either on its own or through the process of the court, such as summons or warrant. There is hardly any reason to think that the word 'produced' in Section 251-A should be so strictly construed as to burden the prosecution with the entire responsibility of producing evidence even to the extent of ensuring physical presence of the witnesses, In all criminal trials the supervening consideration for the court is to do justice evenly to both the parties. It may be noted that Section 540 of the Code of Criminal Procedure empowers a court to summon and examine or recall and re-examine any person if his evidence appears to it essential to the just decision of the case. There are numerous decisions of different High Courts to the effect that there is nothing in Section 251-A which precludes the court from issuing summons to the witnesses if required by the prosecution and to take further necessary steps to secure attendance of witnesses. The State of Bihar v. Polo Mistrv : AIR1964Pat351 ; State of Orissa v. Sib Charan Singh : AIR1962Ori157 ; State v. Nand Kishore 0043/1967 ; State of Mysore v. Narasimhe Gowda. AIR 1965 Mys 167 : (1965) 2 Cri LJ 48. mav be referred to in this connection. The position in law. therefore, seems to be that while Section 251-A of the Code of Criminal Procedure casts no- duty upon a Magistrate in a case started on a police report for producing attendance of witnesses. at the same thn.e there is nothing in the Code which prevents him from issuing summons at the instance of the prosecution. If the facts and circumstances so require, the Magistrate may and ought to. in the interest of justice, go the whole length of exhausting processes for securing attendance of witnesses.
7. Referring to the facts of the instant case, it will appear that the records do not show that the case was protracted on the ground of prosecution praying for adjournments from time to time. More often than not it was because the learned Magistrate was busy that the case had to be adjourned from day-to-day. In this respect the facts are clearly distinguishable from the facts in the case of : AIR1968Cal512 noted above. Moreover, there is nothing to indicate that the learned Magistrate considered witnesses called for by the prosecution to be unnecessary for the purpose of unfolding the narrative on behalf of the prosecution. The records also show that the learned Magistrate himself, issued summons to the witnesses at the instance of the prosecution. In such circumstances merely because the witnesses happened to be absent on one particular day in course of a protracted trial, the learned Magistrate should not have dispensed with their presence and proceeded to examine the I. O, by closing the prosecution cese. The order of the learned Magistrate unfortunately does not seem to have been made carefully or with due consideration. On the facts and circumstances of the case, the order made by the learned Magistrate, therefore, seems to be wrong and this court agrees with the recommendation made by the learned Sessions Judge Bir-bhum.
8. It is therefore ordered that the order dated 5th May. 1971 passed bv Sri R. N. Saha. Magistrate. Second Class, Rampurhat. be set aside and the learned Magistarte be directed to take necessary steps for enforcing the attendance of the prosecution witnesses who accepted the summons and dispose of the case according to law,
9. The Reference is accepted.