A Magistrate has a duty to ensure that summons issued to witnesses are served and that their absence is not due to any fault on their part.

( 1 ) THIS Rule is directed against the order of the learned Magistrate at Ranaghat dated 15th February, 1963 whereby he acquitted the accused persons charged under Section 324, Indian Penal Code read with Section 24 of the Cattle Trespass Act, under Section 251a (XI) of the Code of Criminal Procedure. What happened is that the present petitioner who is the complainant lodged a first information report with the police station Nrisinhapur on the 5th July, 1962 on the allegation that Basudeb had assaulted him and Dulal inflicted a blow on his chin with a hesua causing bleeding injuries. After investigation the police submitted challan and the trial commenced before the learned Magistrate. Mr. Kishore Mukherjee, the learned Advocate appearing for the petitioner, submits that the learned Magistrate passed the order of acquittal without taking any steps for procuring the attendance of the witnesses on whom the learned Magistrate was pleased to issue summons. His contention is that when once the Magistrate passed the order for issuing the summons it was his duty to pursue the matter and to see whether the service had really been effected and if not already effected what further steps were to be taken. It will appear that on the 25th October, 1962 the learned Magistrate adjourned the case to 8th December, 1962 for evidence. Accordingly he ordered that the summons should be issued upon the witnesses. On the 8th December, 1962 the Magistrate further ordered that summons be again issued upon the witnesses. On that very date it appears that the Investigating Officer appeared before the learned Magistrate in pursuance of the summons but he was not examined. On the 7th January 1963 the same Magistrate passed an order to the effect that since there was service return in two cases there are service returns in other cases also. By using this expression it seems to me that the Magistrate reported to say that since service returns in respect of two witnesses were received, it should be presumed that other service returns were also on the record. He however appreciated the difficulty in this matter and adjourned the case to the 12th February 1963 for ten prosecution witnesses and also issued an order of summoning them. On the 12th February, 1963 only the doctor who was present was examined and on account of the absence of the prosecution witnesses he rejected the prayer of the Court Sub-Inspector for any adjournment. He examined the accused persons present under Section 342 of the Code of Criminal Procedure and on their pleading not guilty proceeded to record his judgment whereby he has acquitted the accused as stated before under Section 251a (XI) of the Code of Criminal Procedure.

( 2 ) THE point of law as involved in this case is when a Magistrate takes upon himself the task of summoning witnesses, whether it is incumbent upon him to satisfy himself that such summons have really been served and whether in spite of such service the witnesses have without any sufficient reason absented themselves from appearing before the court. I accept the contention of Mr. Ambica Charan Bhattacharya, the learned advocate appearing for the opposite parties, that in a case under Section 251a, no duty is cast upon the Magistrate to procure the attendance of the witnesses. Sub-section (7) provides that on the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. This sub-section casts no duty upon the Magistrate to issue summons upon any witness in a proceeding started under Section 251a and this is dis- tinguishable from the provisions contained in Section 252 which provides for cases started upon private com plaint. It has been provided in Sub-section (2) of the section that the Magistrate shall ascertain, from the complainant or otherwise, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall su