A Magistrate has the discretion to issue summons to witnesses in a case started on a police report, and may and ought to, in the interest of justice, go the whole length of exhausting processes for securing attendance of witnesses.

This is a Reference under Section 438 of the Code of Criminal Procedure made by the Sessions Judge Birbhum. The letter of reference recommends that an order dated the 5th May, 1971 passed by Sri R. N. Saha, Magistrate, Second Class Rampurhat in G.R. Case No. 147 of 1968 be set aside and that the learned Magistrate be directed to take necessary steps for enforcing the attendance of prosecution witnesses who accepted summons and then to dispose of the case according to law.

2. In the case under reference which involves a charge under Sections 325/379 of the Indian Penal Code the trial seems to have been a protracted one. Although the charge was framed by the learned Magistrate on 28-1-69 it was adjourned from time to time. On the 3rd October, 1969, four witnesses were present but the learned Magistrate was busy and the case was again adjourned to 19-1-70. On the said date also the case was adjourned to 31-3-70 when two witnesses were examined and the case was further adjourned to 15-6-70. On that day, although the hazira for three witnesses was filed the matter could not be taken up for hearing and the case was again adjourned to 31-7-70. After further adjournment to 23-11-70 the learned Magistrate only examined one witness. The next date for hearing was 3-3-71 but the learned Magistrate was busy and as such the case was again adjourned to 5-5-71 when the impugned order was passed The said order runs as follows :-

"All the accused persons are present. No hazira of witnesses received though the witnesses accepted the summons. So it is useless to keep pending this case any further for the examination of witnesses. Issue summons on I.O. only for examination. To 14-6-71 for examination of I.O. Accused as before."

3. The question involved is of considerable importance and general concern. After the amendment of the Code of Criminal Procedure by the amending Act XXVI of 1955 provision for a separate procedure exclusively for trial of warrant cases instituted on a police report has been made in Section 251-A, Cr.P.C. The object is to ensure expedition in warrant cases so that the accused may be either quickly discharged if there is no case against him or the trial may be brought to an end speedily by acquittal or conviction. No duty is cast upon the Magistrate, prima facie, to 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 prosecution nor is there any mandatory provision that he "shall summon to give evidence before himself such of them as he thinks necessary." as is to be found in Section 252(2), Cr.P.C. which applies in cases instituted otherwise than on a police report.

4. A decision of the Division Bench of this High Court in the case of State of West Bengal v. Narayan Rao, AIR 1968 Cal. 512 = (1968 Cri.L.J. 1396) was cited at the Bar. It was held that the order of acquittal made by the Magistrate without further compelling the attendance of witnesses could not be assailed. About the facts of that case it was observed :

"even a cursory reference to the order-sheet would convince one that the same is replete with so many prayers of adjournment on the part of the prosecution resulting in a considerable delay in the ultimate disposal of the case. It is passing strange that the case has been dragged on from 1964 to 1967 upon one ground or other. Justice delayed is justice denied and having regard to the aforesaid background of the case, we do not think that the order of acquittal can be assailed on the ground that it is premature."

5. It was however, observed that both the sections namely Sections 252(2) and 251-A, Cr.P.C. appeared in the same Chapter of the Code, namely, Chapter XXI and accordingly the rule of prudence enjoins that the discretion of the court be exercised by proceeding under Section 540, Cr.P.C. to compel the attendance of such witnesses in a fit and proper case whenever deemed necessary instead of dispos