BALAKRISHNA PANICKER Vs. VAN

JUDGEMENT

(1.) The short question for consideration in this petition filed under S.482 of the Code of Criminal Procedure is whether in a summary trial case for which the procedure is that of a summons case after the examination of some only of the prosecution witnesses, the Magistrate could by himself, inspite of the objection from the prosecution, dispense with the remaining prosecution witnesses on the ground that the case is not going to improve even if they are examined and proceed to acquit the accused under S.255(1). That is what the Judicial First Class Magistrate, Ernakulam has done in ST 36 of 1982, a case instituted on police report as a result of investigation conducted as ordered by the Magistrate under S.156(3) on a complaint filed by the petitioner. Crl. RP 33 of 1984 filed by him was dismissed by the Sessions Judge, Ernakulam.

(2.) There were 7 witnesses in the charge. On 22-12-1983 three out of the five occurrence witnesses were examined and the case was adjourned for trial to 27-12-1983. On that day since summons was not issued to the other witnesses petitioner applied for issue of summons and it is said that the Assistant Public Prosecutor was absent on that day. That petition was dismissed and on 31-11-1983 the Magistrate pronounced the judgment acquitting the accused.

(3.) When cognizance is taken under S.190(1)(b) and process issued under S.204 on the satisfaction that there is sufficient ground for proceeding, the Magistrate has to adopt the procedure under Chap.20 of the Code. After stating the particulars of the offence and recording the plea under S.251 if the Magistrate is not adopting the procedure under S.252 or 253 he will have to adopt the procedure under S.254. Prosecution will have to be heard and all such evidence produced by the prosecution will have to be taken and the accused will have to be heard and all such evidence produced by him will have to be taken. Only thereafter acquittal under S.255(1) or conviction under S.255(2) could be had. S.256 and 257 are not applicable because the case is not one instituted on complaint and those contingencies have not arisen also. S.258 authorises the Magistrate to stop the proceedings at any stage for reasons to be recorded in writing and pronounce a judgment of acquittal if the stoppage is after the principal witnesses are examined. In any other case the accused could be released. S.258 also does not arise for consideration because the Magistrate has not proceeded under that section but only under S.255(1).