STATE OF U.P. Vs. GORE LAL

JUDGEMENT

(1.) THIS is a Government appeal against the order dated 15-9-1971 passed by the Sub-Divisional Magistrate, Lalitpur.

(2.) THE respondents 7 in number were being prosecuted for offences under sections 147, 323 and 325, I.P.C. The respondents appeared in the court of the Sub-Divisional Magistrate and their statements were recorded and thereafter charges were framed against the respondents on 11-8-1971 and the Sub-Divisional Magistrate fixed 9-9-1971 for the production of the prosecution evidence for which he directed the witnesses to be summoned. On 9-9-1971 respondents were present but the witnesses did not appear and no report in that regard was received and therefore the Magistrate fixed 15-9-1971 and directed that the witnesses be pro­duced on that date and notice be sent to the S. O. (Station Officer Police Station). On 15-9-1971 the case came up before the Magistrate and an appli­cation was moved on behalf of the prosecution for adjournment of the case on the ground that only one witness was present and the complain­ant could not attend court on that day. This request for adjournment to another date for production of the prosecution witnesses was made by the Assailant Public Prosecutor on 15-9-1971 on the report of the same date of the Station Officer. There was also a report of the Constable that the com­plainant had gone to his sister's house and therefore another date may be given. The impugned order shows that the Magistrate took exception to the complainant having preferred to visit his sister's house rather than to attend the court. From this the Magistrate inferred that the prosecution had no interest in the case and accordingly he dismissed the case, consigned the file to the record room. Sri A. Kazmi, learn­ed Assistant Government Advocate has referred to the provisions of section 251-A of the Code of Criminal Proce­dure which provides that the Magistrate shall summon the witnesses. In the instant case the Magistrate on 11-8-1971 did order the summoning of the witnesses. According to the learned counsel if the witnesses did not appear in court in response to the summons, the learned Magistrate had ample power to compel the attendance of the prosecution witnesses for recording their evidence and deciding the case on merits and the learned Magistrate had no option in this regard to short circuit the case by dismissing it.

(3.) IN this appeal preferred by the State, the memorandum of appeal con­tains only two grounds which are in the general form, that the acquittal is unwarranted in law and on facts and circumstances of the case the order of acquittal is based on findings which are against the weight of evidence on record. Such general grounds in the State appeal have been depreciated by the Supreme Court in the case of Kapil Deo Sukhla v. State of Uttar Pradesh (A.I.R. 1958 S.C. 121.). The observations of the Supreme Court in this regard are that :