STATE OF UTTAR PRADESH Vs. GORE LAL

JUDGEMENT

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

(2.) THE respondents 7 in number were being prosecuted for offences under Section 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 August 11. 1971 and the Sub- Divisional Magistrate fixed Septem ber 9, 1971 for the production of the prosecution evidence for which he directed the witnesses to be summoned. On Sept. 9,1971 respondents were present but the witnesses did not appear and no report in that regard was received and therefore the Magistrate fixed September 15, 1971 and directed that the witnesses be produced on that date and notice be sent to the S.O. (Station Officer, Police Station). On Sep tember 15, 1971 the case came up before the Magistrate and an ap plication was moved on behalf of the prosecution for adjournment of the case or 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 wit nesses was made by the Assistant Public Prosecutor on September 15, 1977 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 impugn ed 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 consign ed the file to the record room. Sri A. Kazmi, learned Assistant Gov ernment Advocate has referred to the provisions of Section 251-A of the Code of criminal Procedure which provide that the Magistrate shall summon the witnesses. In the. instant case the Magistrate on August 11, 1971 did order the summoning of the witnesses. Accord ing 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 Ma gistrate had no option in this regard to short circuit the case by dis missing it.

(3.) IN the result, the State appeal is allowed. The impugned order of the Magistrate dated September 15, 1971 is set aside and the case which has been consigned to the record room shall be processed in accordance with law. The case is accordingly remanded with the direction that this case shall be tried by a Magistrate other than the Magistrate who has passed the impugned order dated September 15, 1971.