STATE OF U.P. Vs. MOTI AND OTHER

JUDGEMENT

(1.) THIS is an appeal by the State from the order of acquittal of Moti and other Respondents passed by Shri S.B. Katiyar, Magistrate 1st Class, Jalaun at Orai, in Cr. Case No. 273 of 1966. The case against the Respondents proceeded on the basis of a police report and the procedure adopted by the learned Magistrate was that of the trial of a warrant case. The learned Magistrate recorded the statements of the accused on 13 -9 -1966 and on the same date framed charges against them Under Sections 148 and 323/149 IPC. The learned Magistrate then fixed the 3rd, 4th and 5th October, 1966 for examination of prosecution witnesses. None of the witnesses except Dr. R.S. Bharadwaj, Medical Officer attached to the male hospital at Kalpi turned up on any of the said dates. On behalf of the prosecution applications were filed before the learned Magistrate for taking coercive measures against the witnesses to secure their attendance in court for evidence. The learned Magistrate however, refused the prayer made on behalf of the prosecution in that regard. The Magistrate observed that it was the duty of the prosecution to have brought the witnesses and examined them in the case. Holding as above, the learned Magistrate acquitted all the 8 Respondents of the charges framed against them. Hence this appeal.

(2.) MR . Goel, learned Counsel for the State, submits that the order of acquittal passed by the learned Magistrate in the circumstances of the present case was manifestly illegal. He argued that Under Sub -section (6) of Section 251 of the Code of Criminal Procedure as amended by U.P. Act No. XXXI of 1961, a duty has been laid upon the Magistrate to summon the witnesses after he has framed charges against the accused persons under Sub -section (3) of the same section. If the witnesses for the prosecution do not appear in response to the summons issued by Magistrate there is ample power conferred upon him under the Code to compel their attendance to give evidence. Section 485A of the Code of Criminal Procedure empowers the Magistrate to punish such defaulting witnesses in a summary procedure. Section 485A lays down:

(3.) IN the present case the learned Magistrate should not have acquitted the accused persons merely because the prosecution was unable to produce the witnesses. The Magistrate should have allowed the prayers made on behalf of the prosecution to compel the attendance of the witnesses by coercive measures. The order of acquittal made by the learned Magistrate is clearly illegal and cannot be sustained. The appeal is, therefore, allowed. The order of acquittal is set aside and the case is sent back to the learned Magistrate to be disposed of in accordance with law.