K.V. Gopalakrishnan Nair, J.
1. These are two references by the Addl. Sessions Judge at Jammu in the following circumstances. The first class Magistrate ' at Reasi issued summons for attendance of two witnesses to give evidence in a criminal case pending before him. The witnesses did not attend the court in spite of receipt of summons, The Magistrate, therefore, issued notice to them to show cause why they should not be punished for disobedience of the summons. Thereupon the witnesses appeared before him and asked to be excused. The Magistrate, however, fined such of them to Rs. 5/-.
2. In his order the Magistrate has chosen to use the expression that 'they are sentenced to a fine of Rs. 5/-.' The persons on whom this sentence was imposed in this summary and somewhat extraordinary manner moved the Addl, Sessions Judge at Jammu in revision. The Addl. Sessions Judge has expressed the view that the conviction and the sentences are illegal and must be quashed and with this recommendation sent up the cases to the High Court under Section 438 of the Criminal P.C.
3. I agree entirely with the recommendation of the learned Addl. Sessions Judge. Non-attendance in obedience to a summons of a court is an offence under Section 174 of the Penal Code. If the Magistrate thought that such an offence had been committed by the persons in question he ought to have followed the procedure prescribed by the Code in trying them therefor. This has not been done by the Magistrate. A simple notice to the persons and their coming forward and asking to be excused is all that took place in these cases.
Such a procedure is not contemplated by the Code, and the Magistrate could not formulate his own procedure, however convenient it be. This is the first flagrant error into which the first class Magistrate has fallen. There is more. In view of the provisions of Section 195(1)(a) of the Criminal P.C. an offence punishable under Section 174 of the Penal Code can be taken cognizance of by a court only on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate.
This provision has been grievously over-looked by the Magistrate in these cases. There is also Section 487 of the Code which prohibits the Magistrate from trying any person who has been guilty of an offence under Section 174 of the Penal Code in relation to a summons issued by him. This also was not noticed by the Magistrate. The result of all this has been undue hardship and injury to the unfortunate witnesses.
4. The unmitigated violation of Sections 195 and 487 of the Criminal P.C. would have been sufficient to set aside the conviction and sentence even if there were a proper trial of the persons in question in accordance with the procedure prescribed by the Cri. P.C. But, as I already stated, there has not taken place any proceeding before the Magistrate which can by any stretch of reasoning be called a trial under the Criminal P. C
5. For these reasons, the references are accepted and the conviction and sentence of each of the petitioners are set aside. Fine, if paid, will be refunded.