STATE OF U P Vs. PUTTU

JUDGEMENT

(1.) This appeal is directed against the order dated June 3, 1976 passed by Munsif Magistrate Havali, Farrukhabad acquitting the respondents of an offence punishable under Section 25 Arms Act. According to the prosecution the respondent was arrested on April 21, 1974 at about 6 p. m. and one country made gun with 3 live cartridges were recovered from his possession. The respondent did not have a licence to possess the same. On June 3, 1976, one Daya Ram was examined on behalf of the prosecution. Immediately thereafter the magistrate passed order of acquittal. He did not even examine the respondent under Section 313, Cr. P. C. after the statement of Day a Ram (P. W. 1 ). The grievance of the State is that the magistrate did not try the case properly and that the statement of Daya Ram was recorded in the absence of the Assistant P. O. A perusal of the record clearly bears out the grievance of the State. The order sheet shows that on April 23, 1976 the case was fixed for evidence on June 3, 1976. On the margin of this order sheet there is a note that 4 prosecution witnesses be summoned. On June 3, 1976 the magistrate himself wrote on the vernacular order sheet "called out. Accused is present. Prosecution examined Daya Ram and close Judgment delivered". If the prosecution had made a request for summoning 4 witnesses then it is obvious that the prosecution wanted to examine 4 witnesses. There is nothing on record to show that their prosecution discharge other 3 witnesses on June 3, 1976. The order sheet does not bear signature-initial of the Assistant Prosecuting Officer. The order sheet dated June 3, 1976 written by the Magistrate himself does not even indicate that the Assistant Prosecuting Officer was present and that he closed the evidence. Moreover, if the evidence of the prosecution was closed after examining Daya Ram it was the duty of the magistrate to have examined the respondent under Section 313 Cr. P. C. to explain the facts and circumstances appearing in the statement of Daya Ram. The Magistrate even did not examine the respondent under the said provision. This indicates that the magistrate was in a hurry to dispose of the case. It is further evident that as the respondent was not examined under Section 313 Cr. P. C. the statement of Daya Ram went uncontradicted and this statement should have been sufficient for the magistrate to convict the respondent. From the facts stated above it is too clear that the magistrate did not try the case properly and hurriedly disposed of the case without observing the legal procedure. The case is no doubt of a minor nature, but as it has not been tried properly, it is but just to direct the magistrate to try the case accordingly to law. Appeal is allowed and the order dated June 3, 1976 passed by the Munsif Magistrate Havali Farrukhabad acquitting the respondent of the offence punishable under Section 25 Arms Act is set aside. The C. J. M. Farrukhabad is directed to try the case again either himself or through any other competent magistrate. Parties will appear before the C. J. M. Farrukhabad on January 6, 1981. Record of this case shall immediately be sent down. .