Amitabha Dutta, J.
1. This revisional application is directed against the order passed by the learned Judicial Magistrate, 2nd Court, Tamluk on the 9th July, 1979 acquitting the accused opposite parties under Section 248(1) of Cr.PC in G.R. Case No. 1060 of 1974.
2. It appears that on the complaint of the petitioner which was sent by the learned Magistrate under Section 156(3) of the Code, to the police for investigation, the police after completing investigation, submitted charge-sheet against all the accused opposite parties. The learned Magistrate framed charges under Sections 148/447/ 426/325/323 of the Penal Code against all the accused opposite parties and further charges under Section 379, I.P.C. against Abdul Matlab and Abdul Rashid and fixed the case on 19-11-75 for taking prosecution evidence. As no prosecution witness was present on 19-11-75 the learned Magistrate adjourned the case to 10-3-76 for examination of prosecution witnesses on 10-3-76 no prosecution witness was present and the learned Magistrate issued summons fixing 7-9-76 for prosecution evidence. On 7-9-76 he adjourned the case to 28-10-76 as no summons had been issued after ordering issue of summons. On 28-10-76 no prosecution witness was present and there was no service return-So, he adjourned the case to 17-3-77. On 17-3-77 no prosecution witness was pre-? sent and there was no service return although summonses were duly issued. The learned Magistrate again ordered issue of fresh summons to the witnesses and fixed the case on 16-6-77 for evidence. On 18-6-77(sic) prosecution witness was present and there was no service return. He fixed the case on 28-9-77 for evidence directing the prosecution to produce witnesses already summoned and issued of (sic) summons to some other witnesses, On 28-9-77 no prosecution witnesses was present and there was no service return. The learned Magistrate recorded that no steps were taken by the prosecution and he directed the Assistant Public Prosecutor to take proper steps to bring the witnesses on the next date, fixing the case on 2-3-78 for evidence. On 2-3-78 no prosecution witness was present and there was no service return. The learned Magistrate observed that it n appeared from the record that summonses were duly issued to all the witnesses but none appeared before the court. He fixed the case on 26-4-78 for evidence as the last chance and directed the prosecution to produce the witnesses on the date fixed with a warning that in default the evidence would be closed. On 26-4-78 there was no prosecution witness present and no service return. Nor was there any explanation from the prosecution. The learned Magistrate in view of his previous order closed the prosecution case and fixed the case on 19-7-78 for examination of the accused under Section 313 of the Code. Ultimately the learned Magistrate took up the case on 9-7-79 and after observing that as no witness had been examined by the prosecution, there was no incriminating evidence against the accused persons, he found that the prosecution case failed and passed the impugned order of acquittal.
3. It is submitted by the learned advocate for the petitioner that as there was no service return and no prosecution witness was served with any summons to attend the court the learned Magistrate should not have closed the prosecution evidence without taking proper steps to compel the attendance of the prosecution witnesses. It is, therefore, argued that the impugned order of acquittal is bad in law and should be set aside and the informant petitioner should be given one chance to produce witnesses in support of the prosecution case. In this connection, the learned advocate for the petitioner has referred to the decision in the case of Paban Chandra v. Dulal Ghosh : AIR1965Cal387 . In that case instituted on police report the learned Magistrate ordered issue of summons on prosecution witnesses and after certain adjournments without taking any steps for procuring attendance of the witnesses proceeded further and after examining the accused persons passed an order of acquittal. The learned single Judge held that the order of acquittal was unwarranted by law and observed that the learned Magistrate ought not to have taken up the case for further hearing without being satisfied that his order for the attendance of witnesses has been carried out or not. It may be mentioned that in .the reported case the F.LR. was lodged on 5th July, 1962 and the learned Magistrate passed the order of acquittal on 15-2-63. The procedure applicable to that case was provided by Section 251A (7) of the old Code which laid down that on the date fixed for examination of witnesses by the prosecution 'the Magistrate would proceed to take all such evidence as may be produced in support of the prosecution'. In the instant case the procedure applicable is mentioned in Section 242(2) and (3) of the Code of 1973 which are as follows:
242(2). The Magistrate may on the application of the prosecution issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.
(3) On the date so fixed the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution.
The proviso to Sub-section (3) is not relevant in this case. The only difference is that the Code of 1973 specifically confers discretion on the Magistrate to issue summons to prosecution witnesses on the application of the prosecution, which he had according to decisions of several High Courts even when Section 251A (7) of the Code 1898 was in force. Thus it appears that (the aforesaid provisions of the new Code give a discretion to the learned Magistrate to issue summons to the prosecution witnesses on the application of the prosecution and casts a duty on the Magistrate to take all such evidence as may be produced by the prosecution on the date fixed. It has been held by a Bench decision of the Patna High Court in which the judgment was delivered by Untwalia C. J. (as the learned Judge then was) in the case of State v, Mangilal. 1974 Cri LJ 221 that in a warrant case instituted on police report the prosecution is to produce witnesses. Help of the court may, however, be asked for issuing summons to the prosecution witnesses or to issue warrant of arrest, if necessary and such a prayer would be allowed unless there are special reasons to refuse it. The power to issue summons etc. may be exercised by the court even suo motu but it is not imperative for the court to do so. The court may refuse to exercise that power where prosecution is negligent or guilty of laches. In that case summonses were issued to the witnesses but still they were not attending the court. The prosecution was not able to produce them and it was not clear whether the summonses were served or not. But no reason was given by the prosecution for the absence of the witnesses. The accused was being harassed on many dates- In such a situation it was held that the learned Magistrate was justified in closing the prosecution case and proceeding with the trial and that he did not commit any illegality or irregularity for which his order could be set aside. I respectfully agree with the view taken by the Division Bench of the Patna High Court in the aforesaid case, in relation to the trial of a warrant case instituted upon police report. In the instant case, the learned Magistrate adjourned the case on 8 occasions between 19-11-75 and 2-3-78 and issued fresh summons to witnesses on three occasions. He repeatedly directed the prosecution to take steps for production of witnesses. But the prosecution was extremely negligent and was guilty of laches in not taking steps to produce witnesses in spite of repeated issue of summons to the witnesses and repeated opportunities for producing evidence. About 5 years passed between the first date of appearance of the accused persons in court after submission of charge-sheet and the impugned order of acquittal. They were harassed on many occasions for non-production of witnesses for the prosecution. At the hearing of the case, before this court it has been submitted by the learned advocate appearing for the State-opposite party that this is not a fit case for interference with the order of the learned Magistrate The learned advocate for the State is not sure that the same situation would not be repeated if the case is sent back to the learned Magistrate, Carriage of the proceeding cannot be given to the first party informant. Considering the facts and circumstances of the present case and the legal position I find, that the learned Magistrate has not committed any illegality or irregularity in passing the impugned order of acquittal and that this is not a fit case for interfering with his order.
4. The application, therefore, fails and the Rule is discharged.