JAMAN SHAW Vs. BENOY NASKAR

JUDGEMENT

(1.) This is a Rule directed against, an order of acquittal purporting to have been, passed under Sub-section (11) of Section 251A, Code of Criminal Procedure, consequent upon non-appearance of witnesses on the dates fixed for evidence and a question about the procedure to be followed under Section 251A, Code of Criminal Procedure, and the powers and duties of the learned Magistrate under that section has arisen. For appreciation of the point and proper decision there on a short resume of the fact need be given. On June 2, 1958 a complaint was filed by the present Petitioner before the Subdivisional Magistrate, alleging' against 11 opposite north's and 5 others an offence under Section 395 of the Indian Penal Code. The learned Subdivisional Magistrate sent the complaint to the Officer-in-Charge of the Bangolar Police Station for treating the complaint as an F.I.R. and investigating into the case. After investigation the Police submitted a charge-sheet against all the 16 accused persons complained against. Upon that Police report and after perusing the Police papers as is required under Section 251, Code of Criminal Procedure, the learned Magistrate framed charges against the 11 opposite parties on May 7, 1959 for offences under Sections 147 and 379, Indian Pinal Code, and not under Section 395. Indian Pinal Code On that date, i.e., May 7, 1959 the learned Magistrate by his order fixed June 15, 16 and 17, 1959 for evidence and directed issue of summons to prosecution witnesses, "in consultation with C.S.I." obviously for ascertaining names and addresses of the witnesses and summoning them in batches for each of the three days fixed. Summons were issued but no return of service had been received in Court. On June 15, all the 11 accused persons were present but no prosecution witness was present and the learned Magistrate recorded the following order.

(2.) All the eleven accused persons are present. No P.W. present inspite of summons. Tomorrow for P.Ws. as already fixed. Accused as before.

(3.) On June 16 also for the 11 accused persons were, present but neither any prosecution witness nor even the Court Sub-Inspector was present and no steps were taken on that date by the prosecution by filing any petition. In that stage of affairs on June 16, 1959, the learned Magistrate passed an order of acquittal purporting to act under Section 251A(11), Code of Criminal Procedure. The order was in these terms: