STATE OF U.P. Vs. ONKAR

JUDGEMENT

(1.) There is a very short point involved in this criminal reference.

(2.) The facts are that the opposite party namely Onkar was charged by the learned Magistrate Under Sec. 25 of the Indian Arms Act on 14 -8 -1970. He then had fixed the case for 4 -9 -1970 for examination of the prosecution witnesses. On that date only one witness i.e. the Sub -Inspector Sri D.D. Dikshit was present and was examined and the case was adjourned for 18 -9 -1970 for recording the evidence of the other witnesses. On the date fixed the learned Magistrate had gone on tour and so the case was adjourned for 16 -10 -1970 for prosecution evidence. On 16 -10 -1970 no prosecution witness was present and so the A.P.P. submitted an application to the court praying that the prosecution witnesses be summoned through court since the police of thana Nawabganj appeared to be reluctant to produce the witnesses. Thereupon the learned Magistrate did adjourn the case for 23 -10 -1970 for production of the entire prosecution evidence but rejected the prayer for issue of summons to the witnesses saying that "if the prosecution is reluctant to examine the witnesses the question of issue of summons for execution does not arise." On 23 -10 -1970 no prosecution witness appeared and the A.P.P. applied for adjournment of the case for examining the prosecution witnesses. This application was rejected by the learned magistrate and the order sheet showed that the case was fixed for examination of the accused Under Sec. 342 Code of Criminal Procedure and for defence for 6 -11 -1970. It is against this order dated 23 -10 -1970 that the prosecution has come up in revision and reference has been made by the learned Additional District Magistrate, Bareilly to this Court recommending that the impugned order be quashed.

(3.) It may be stated at the very outset that though the revision is directed against the order dated 23 -10 -1970 it was merely a consequential order and the real grievance arose on account of the order passed on 16 -10 -1970. If the request made on behalf of the prosecution on 16 -10 -1970 had been allowed by the learned Magistrate, either it would not have been necessary to seek an adjournment on 23 -10 -1970 cr the adjournment would have been in all probability allowed. Therefore, if the previous order was contrary to law and had culminated in a refusal of adjournment on 23 -10 -1970 the powers of this Court are sufficiently wide to remedy such illegality as has vitiated the proceedings.