STATE OF MYSORE Vs. A G RAMASWAMY

JUDGEMENT

(1.) This is a reference under section 483 of the code of Criminal Procedure, by the Sessions Judge, Chitradurga, recommended to set aside the order passed by the Special First Class Magistrate, Davanagere, in Criminal Case No. 2892 of 1967.

(2.) The facts which have given rise to this reference are these: The Sub-Inspector of Police Davanagere filed a charge sheet on 25-5-1966 against one A. G. Ramaswamy (respondent in the reference) in the Court of the Special First Class Magistrate, Davanagere, alleging that he was in possession of some brandy bottles without a valid permit and thereby committed an offence punishable under Section 12(a) read with section 59(b) of the Mysore Prohibition Act. For one reason or the other, the respondent did not appear before the Court. Therefore, the learned Magistrate stopped the proceedings under section 249 Cr.P.C. on 14-6-66. After nearly 13 months the prosecution filed an application on 28-7-1967, requesting the Court to revive the proceedings, stating that the respondent had been traced. The learned Magistrate revived the case and took the case on his file giving C. C. No. 2897/67. On that day the prosecution filed an application along with three references, requesting the Court to include the names of three witnesses mentioned in the said application and to issue summonses to them. the Magistrate posted the case to 31-7-67 for filing the objection by the respondent, if any, to the said application. On that day, no objections were filed. Thereafter the learned Magistrate passed an order dated 2-8-1967, rejecting the application filed by the prosecution to examine additional witnesses. The learned Sessions Judge has made this reference to set aside the said order.

(3.) It could be seen from the order of the learned Magistrate that no provision of law was mentioned in the application under which the prosecution sought to examine three additional witnesses. However, the learned Magistrate, took the application to be one under Section 540 Cr.P.C. He rejected the application mainly on the ground that no material was placed before him in the application that the evidence of the three witnesses was essential for the just decision of the case in order to exercise the discretion given to him under section 540 Cr.P.C. In disposing of the application he stated thus: