CHENNAKESAV REDDY, J.

( 1 ) THIS appeal against acquittal preferred by the State Public Prosecutor is placed before us on reference made by our learned brother Sambasiva Rao, j. The learned Judge felt that there was divergence of judicial opinion on the point involved in the case. It is: whether a criminal Court cannot acquit the accused under section 251-A (11), Criminal Procedure Code (old) in the absence of the production of any evidence by the prosecution and whether it is duty bound to take coercive steps to compel the attendance of the prosecution witnesses in a warrant case even though the prosecution altogether failed to take any interest to produce the witnesses inspite of several adjournments taken by the prosecution for the production of the witnesses.

( 2 ) THE relevant facts giving rise to the appeal lie in a narrow compass: The Excise sub-Inspector, Pamidi, laid a charge-sheet before the Judicial First Class Magistrate, gooty, against the accused V. Mune Naik, under section 34 (a) of the Andhra Pradesh excise Act alleging that he was found in possession of a mud pot containing two litres of arrack on 19th July, 1970. The charge- sheet was filed on 20th March, 1972. The case was taken on file as C. C. No. 287 of 1973. The accused appeared on 24th november, 1973 and charges were framed against him on 18th December, 1973 and summons were issued for the production of witnesses. The case underwent several adjournments from 18th December, 1973 to 29th October, 1974. For all the adjournments, the accused was present. But the prosecution witnesses were not produced nor the summons returned unserved. The learned Magistrate acquitted the accused under section 251-A (11), Criminal Procedure Code, on 29th October, 1974 observing:"the accused has been regularly attending the Court for quite a number of adjournments for well over 10 months, in spite of the witnesses not being produced into Court. In spite of the learned A. P. P. Gr. II being appraised of the matter on the date of every adjournment, there seems to be no effect on the Excise Department to produce the witnesses. Thus, the case is pending since a long time. The Court, is therefore, inclined to camel to the conclusion that the complainant has no interest, whatsoever, in the matter. So, I am constrained to infer, that the prosecution has no evidence in the case to adduce on their behalf and I further feel that it is not in the interests of justice that the accused be any more subjected to the! harassment of this nature". The State has, therefore, preferred this appeal.

( 3 ) THE question is whether it is the duty of the Magistrate trying the case under the warrant procedure, when no evidence has been produced by the prosecution, to compel the attendance of the prosecution witnesses, of, whether he is free to acquit the accused for want of prosecution evidence. Judicial opinion in this regard is conflicting. One view is that the Magistrate will not be justified in passing an order of acquittal where no evidence has been produced by the prosecution as the case has to be decided by the magistrate on merits. Therefore, the magistrate is bound to compel the attendance of the prosecution witnesses. This view was expressed by this Court by Mohamed Mirza, j. , in Public Prosecutor v. Pachiappa Mudaliar. The learned Judge observed:". . . . . . Once the Magistrate takes cognizance of the case, it becomes his bounden duty to go to the root of it and do justice in the matter. The Criminal Procedure code has given very wide powers to the magistrate only with a view to clear any possible obstacle in the way of the Magistrate to do justice in a case. Taking cognizance of a case means that the Magistrate prima facie is satisfied that the offence has been committed and in such a situation it is necessary for the Magistrate to find out who the culprit is and in this process he must adopt every method available to him under law for coming to the decision. If the prosecution is slack a

Click Here to Read the rest of this document