STATE Vs. JOHN GEORGE

JUDGEMENT

(1.) This appeal by the State is directed against the judgment of the Sub-Magistrate, Thiruvella, acquitting the respondents of offences under S.143, 149, 341, 294 and 279 of the Indian Penal Code. The case was triable as a summons case under Chapter XX of the Code of Criminal Procedure and the accused were acquitted under S.245 of the Code.

(2.) The case against the accused was one charged by the Sub-Inspector of Police, Thiruvella, and it came on for evidence on 18-10-1958. Neither the Prosecutor nor any witness for the Prosecution was present that day and the Magistrate adjourned the case to 12-11-1958 for evidence. Witnesses were not produced by the Prosecution that day either, and it appears that either after the case was taken up for disposal or was actually disposed of, a Head Constable who appeared for the Prosecution filed a report that summons may be issued to witnesses 1 to 6 in the charge sheet and that the case be adjourned for evidence. The learned Magistrate rejected this report by the order: Too late. The accused were acquitted that day on the ground that the Prosecution had not adduced any evidence.

(3.) When the case was heard before one of us in the first instance it was referred to a Division Bench in view of certain points raised by the learned Public Prosecutor such as that the Magistrate had no jurisdiction to acquit the accused under S.245 as the case was one charged by the Police, that even if an order of acquittal could be passed under S.245 the same could be made only after taking evidence for the Prosecution and that the proper section under which the Magistrate could act was S.249. However the learned Advocate General who appeared for the State did not contend for the extreme position that the Magistrate could act only under S.249. The main point on which he rested his case was that the Prosecution had made an application for issuing summons to witnesses 1 to 6, 14 and 15 in the charge sheet and that the Magistrate ought to have summoned those witnesses or at least considered the prayer for summoning them, before acquitting the accused. It was stated that the application was made in the charge sheet itself which concluded with the prayer that witnesses 1 to 6, 14 and 15 should be summoned and examined. According to the learned Advocate General this prayer in the charge sheet has to be treated as an application for issue of summons to those witnesses and a separate application in this behalf is unnecessary. In view of the clear submission in the charge sheet we are inclined to accept this argument. In this view it must be held that the learned Magistrate failed to exercise his discretion in the matter. It is open to a Magistrate trying a summons case to grant or refuse the prayer for issuing summons to witnesses, but such discretion must be exercised and it must also appear to have been exercised. So far as this case is concerned the learned Magistrate does not appear to have been aware of this prayer to issue summons to some of the witnesses for the Prosecution and it is therefore clear that he failed to exercise his discretion in the matter. The acquittal must in these circumstances be quashed.