S.S.SANDHAWALIA, J.

1. What is the duty of the trying Magistrate for compelling the attendance of prosecution witnesses in a warrant case instituted on police report? What is his role in the event of their non-production by the prosecution (despite the issuance of coercive process) on account of its pronounced negligence or recalcitrance over a long period of time? This is the twin question which has come to the fore in this reference to the Division Bench.

2. The petitioner herein is the Bihar State Small Industries Corporation, and it is averred on its behalf that more than fifteen years ago - on the 6th of May, 1969 - Shri B.K. Banerjee, Controller of Accounts of the petitioner corporation, made a surprise check of one of its establishments, being the Industrial Estate situated at Digha, Patna. Respondent No.2, Srideo Jha, at the relevant time, was posted as the Head Clerk-cum-Accountant thereat and the Controller of Accounts detected a defalcation of more than a lac of rupees and made a report (Annexure 1) to the Officer-in-Charge of the Digha Police Station, who registered a case under Sections 409, 420, 467, 468 and 471 of the Indian Penal Code against respondent No.2. It is then the case that the police proceeded in a lackadaisical manner in relation to the investigation of the case, and it was not till more than five years later that it submitted a charge sheet dated the 9th of September, 1974 against the accused Srideo Jha, respondent No.2, and the Magistrate took cognizance of the offence on the 17th of July, 1975. It is specifically averred in paragraph 3 of the petition that thereafter the case was transferred to the files of different Magistrates and in spite of summons and even warrants of arrest having been issued to ensure the attendance of witnesses named in the charge sheet the trying Magistrates found themselves unable to procure their presence in court in the absence of any report from the police regarding the service of the process. Ultimately, on the 19th of September, 1979 Shri A.K. Sinha, Judicial Magistrate, 1st Class, Patna, passed an order directing the prosecution to produce witnesses on the 29th of October, 1979. No witness, however, appeared on the said date and even on the next date of 21st of November, 1979. Thereupon, he directed summonses to issue on witness Nos.1 to 3 for the 18th of December, 1979 and having not received any service report adjourned the matter to the 19th of January, 1980 and again on the non-appearance of witnesses directed the summons to reissue against witnesses Nos.1 to 3 for the 13th of February, 1980. It is unnecessary to advert to the tortuous process of the attempts of the courts to compel attendance of the witnesses and ultimately on the 4th of October, 1980 the learned Magistrate issued a direction to the Assistant Public Prosecutor to ensure the attendance of witnesses on the next date of the 14th of October, 1980 with a warning that on their non-appearance the prosecution case may be closed. However, on the 14th of October, 1980 as well no witness appeared and the learned Magistrate observed that the prosecution was not interested in the case and, accordingly, for the ends of justice it was necessary that the prosecution be closed and the statement of the accused be recorded. Numerous adjournments followed thereafter till 2nd of July, 1981 when after hearing arguments in the case he passed the inpugned order (annexure 3), the operative part whereof is as follows :

"3. The prosecution did not examine a single witness in support of the charge. On perusal of the record it appears that the charge was framed long back on 17-11-1978 and since then the prosecution was given opportunity to produce the witnesses but he failed to do so. In the result the case was closed. "4. The accused denied the commission of the alleged occurrence in his statement.

"5. I do not find on record any evidence or material against the accused. This is actually a case of no evidence an