KANSHI NATTI PANDIT Vs. OMKAR NATH

JUDGEMENT

(1.) THIS is a reference made by the learned Sessions Judge Srinagar recommending that the order dated 10-5-1973 of (City Munsiff) Judicial Magistrate 1st Class Srinagar closing the prosecution evidence be quashed on the ground that it is improper and contrary to law.

(2.) IT appears that in case State v. Omkar Nath pending trial in the Court of City Munsiff Judicial Magistrate 1st Class under Section 451. R. P. C. the Magistrate issued non-bailable warrants against one Dr. Maqbool P. W. in consequence of his non-appearance. On 19th April 1973 the said witness appeared with an application praying that the warrant of arrest issued against him be recalled. He undertook to present himself in the Court on the next date of hearing i. e. , 10-51973, The witness, however, did not appear on the date as a result of which the learned Magistrate closed the evidence of the prosecution. The learned Sessions Judge has in his reference observed that the order closing the evidence of the prosecution could not be sustained in view of the fact that once the Court had issued process against the witness, it was the duty of the Court to enforce his attendance and for that matter even to issue non-bailable warrants against him. There was no justification for the Court below to have closed the evidence of the prosecution.

(3.) I have heard the learned Counsel for the respondents. He has not supported the reference. His contention is that the Magistrate was justified in closing the evidence of the prosecution as the witness had failed to turn up on the date fixed in the case. There wag no other alternative for the Magistrate but to have closed the evidence of the prosecution when it had committed wilful default in this regard. In support of his contention he has referred me to an unreported case of this Court (vide Cr. Reference No. 39 of 1968 (J and K ). State v. Ramzan Naiku decided by the Hon'ble Chief Justice ).