A Magistrate cannot acquit an accused under Section 251-A(11) Cr. P.C. without exhausting all his powers to compel the attendance of witnesses. The Magistrate has a duty to investigate the truth and to ensure that justice is done in the case.

1. This appeal is directed against the order of acquittal passed by the Judicial First Class Magistrate, Gooty in C.C. No. 177/1972. The learned Magistrate took into consideration the facts that the complaint was filed in 1972 by the Excise Sub-Inspector under A.P. Excise Act and he did not choose to produce witnesses before the Court, though several adjournments were granted and though summons for the production of witnesses were taken, they were not served or returned and hence passed the impugned orders holding that the prosecution has no witnesses to produce and they are not interested to prosecute the matter. He, therefore, applied the provisions of Section 251-A(11), Cr. P.C. and acquitted the accused.

2. Sri Srinivasa Rao, the learned Public Prosecutor, contends that the Magistrate has no power to acquit the accused under S.251-A(11), Cr. P.C. since the case does not come under the said provision. He further contends that the Magistrate should have taken coercive steps for securing the attendance of the complainant and other witnesses and the order of acquittal is, therefore, contrary to law.

3. Sri Padmanabha Reddy, the learned counsel for the respondent accused, on the other hand, contends that the order passed by the learned Magistrate makes it clear that the Court has issued summons, but they were not served nor returned though they were issued number of times and the prosecution also did not produce any witness in spite of such steps being taken by Court and hence it is clear that the prosecution is not interested to prosecute the case or has no witnesses to support the prosecution case and in such a case, the only course open to the lower Court is to apply the provisions of S.251-A(11). Cri P.C. and hence the learned Magistrate is justified in passing the impugned order.

4. From the above facts it is clear that the case has been pending since 1972 and the Magistrate has been issuing summonses for the production of the witnesses since 1972, but the prosecution is not interested to see that the said summonses were served on the witnesses. The police also did not serve the summonses nor did they return them. It is, therefore clear that much harassment is being caused to the accused besides inconvenience to the Court on account of non-production of witnesses by the prosecution.

5. The Court, therefore, will naturally feel as to how long the Court should keep the matter pending on its file when the prosecution does not evince any interest in producing its witnesses.

6. The learned Magistrate thought it fit to apply the provisions of Sec. 251-A(11) Cr. P.C. (old) and accordingly acquitted the accused.

7. In a warrant case instituted on a police report, the Magistrate frames, under Section 251-A(3) Cr. P.C. a charge against the accused on being satisfied that there is a ground for presuming that an accused has committed an offence which, in his opinion, could be adequately punished by him. The Magistrate frames such a charge only after considering the documents referred to in Section 173 and after hearing the prosecution and the accused and considering that it is not a case fit for discharging the accused as provided in Section 251-A(2) Cr. P.C.

8. When once the Magistrate comes to the conclusion that on the material available on record and on hearing both sides that the accused should not be discharged and frames a charge against the accused under Section 251-A(3) and when the accused pleads not guilty and claims to be tried, the Magistrate cannot apply the provisions of Section 251-A(11) and acquit the accused on the ground that the prosecution failed to produce evidence. Duty is cast on the Magistrate to take coercive steps to compel the attendance of the witnesses. Merely because the prosecution is lethargic and neglectful in producing its witnesses, it does not follow that the Magistrate has no power to compel the attendance of the witnesses.

9. This court held in Public Prosecutor, A.P. v. Panchiyappa, AIR 1965 An