STATE OF MADHYA PRADESH Vs. RAM SINGH PREMSINGH

JUDGEMENT

(1.) THIS appeal by the State Government is directed against an order of the Magistrate First Class, Bilaspur, dated 20th July, 1971, acquitting the two respondents of an offence under section 380 of the Indian Penal Code. Of these, the respondent No. 2, Shani, is reported to be dead.

(2.) THE order of acquittal recorded by the learned Magistrate was wholly illegal and unwarranted, and has caused manifest miscarriage of justice. The facts, briefly are these. On 30-6-1971, the learned Magistrate framed a charge under section 380 of the Indian Penal Code, and the accused having pleaded not guilty, fixed the case for 20-7-1971, as the date for the examination of the prosecution witnesses. He further directed that summons to the prosecution witnesses be issued. On 20-7-1971, i. e. , on the date fixed, neither the Assistant public Prosecutor nor the prosecution witnesses were present. The learned magistrate thereupon closed the case for judgment, stating that there was no application made by the prosecution for summoning the witnesses, and acquitted the respondents of the charge under section 380 of the Indian Penal Code. That was apparently wrong because the order-sheet dated 30-6-1971 contains a direction for summoning the prosecution witnesses in the following terms:-''summon prosecution witnesses. " this clearly implies that the prosecution had on that day, made a request for summoning the witnesses. There was, therefore, no occasion for the prosecution to make an application afresh on the adjourned date, i. e. 20-7-1971, the date fixed for evidence. On that wrongful assumption, the learned Magistrate has recorded the order of acquittal.

(3.) THE law is clear on the subject. In a case instituted on a police report as enumerated in section 251-A, the learned Magistrate had to adopt the procedure for trial in warrant case. It is true that in such case, no duty is cast upon the Magistrate under sub-section (6) thereof to compel the attendance of any witness, unless it is applied for. Smt. Jyotir Moyee Bose v. Birendra Nath prodhan and others (AIR 1960 Cal. 263.) and The State v. Sagarsingh (1963 JLJ Note 163. ). In the present case, however, the prosecution had made such a prayer, and the prayer was accepted by the learned Magistrate, by ordering that summons be issued to the prosecution witnesses. That being so, the rule laid down in these decisions relied on are not applicable.