STATE OF MYSORE Vs. KALILULLA AHMED SHARIFF

JUDGEMENT

(1.) This appeal filed by the State is directed against the order of acquittal of the two respondents passed by the Judicial Magistrate, First Class, Second Court, Biiapur, in C. C. No. 1344 of 1968. Charges under Sections 392 and 323 of the Indian Penal Code were framed against the respondents by the learned Magistrate and the case was posted for evidence. On 27/5/1969 as there were no witnesses present in the court on behalf of the prosecution, the learned Magistrate acquitted the respondents under Section 251-A (11) of the Code of Criminal Procedure, and it is this order of acquittal that is challenged by the State in this appeal.

(2.) The learned State Public Prosecutor appearing on behalf of the appellant, has contended that the said order of acquittal passed by the learned Magistrate is illegal. On 27/5/1969 as the Assistant Public Prosecutor was not well, and adjournment was asked on behalf of the prosecution which was not unreasonable and that the learned Magistrate was not justified in acquitting the respondents merely on the ground that no prosecution witnesses were present in Court. The learned Magistrate had no power to acquit the respondents under Section 251-A (11) of the Code of Criminal Procedure unless he records a finding that the respondents-accused who were charged with the serious offence of robbery, were not guilty of the charge. He therefore argues that the impugned order of acquittal is not in accordance with law and deserves to be set aside.

(3.) The order-sheet in the case shows that on 24-2-1969 charges were framed against the respondents-accused and the case was posted for evidence to 11-3-1969. On 11-3-69 as no witnesses were present, the case was again posted for evidence to 10-4-69. On 10-4-1969 as the Magistrate was on leave the case was posted to 23-4-1969; that on 23-4-1969 as the counsel for the accused were absent and no witnesses were present, the case was posted to 27-5-1969. On 27-5-1969 the Head Constable represented that the Assistant Public Prosecutor was not well and the witnesses were not present and the learned Magistrate passed the following order: