STATE OF KERALA Vs. ANTHONY

JUDGEMENT

(1.) This is an appeal filed by the State against the order of the Sub Divisional Magistrate, Ponkunnam acquitting the respondent who was prosecuted by the Sub Inspector of Mundakayam for offences under S.448 and 426 I. P. C., for having trespassed into the hut of Pw. 1 and destroyed his household articles. The accused denied the commission of the offence and the case was posted for recording the prosecution evidence.

(2.) On 12-3-1962 the court ordered the prosecution to produce witness No. 1 for examination. Pw. 1 was present on 3-4-1962, but the case was adjourned and the witness was bound over to appear at the next hearing date. At the next hearing date on 3-5-1962, pw. 1 was absent and warrant was issued for his arrest. On the next hearing date 8-6-1962 the arrest warrant could not be executed and the witness was not present for examination. Without enforcing the attendance of the witness, the learned Magistrate acquitted the accused under S.245(1) Crl. P. C.

(3.) It is urged by the learned Public Prosecutor that having issued the warrant the court ought to have enforced his attendance before acquitting the accused. There is considerable force in the submission made. In the case in State v. Aboobaker ( 1960 KLT 1142 )arising under S.251A, Cr.P.C., I had occasion to refer to the duty of the court in examining witnesses in cases where witnesses are not produced by the prosecution. Even if the police fail to perform their duty in producing witnesses the court has a duty to enquire into the offence coming up for trial before them and especially in a case of this nature where the Magistrate had issued a warrant of arrest for the apprehension of the witness. I have no doubt that the discretion has not been exercised properly by the Magistrate and in the interests of justice this is eminently a fit case where the order of acquittal has to be set aside.