The duty of the Magistrate to compel the attendance of witnesses and the mandatory nature of S.251A(7) Cr.P.C. in examining all prosecution witnesses in a warrant case instituted on a police report.

1. In this Revision petition, Pw.1, Sadasivan, the first informant in Crime No. 278/68, Quilon East Police Station, challenges the order of acquittal passed in C. C. 356/69 on the file of the court of the Sub Magistrate, Quilon 1, in favour of the respondents-accused, who stood charged for the offences under S.447 and 427 read with S.34 IPC.

2. The case against the respondents was that on the night of 3010 68 at about 1 a.m. they in furtherance of a common intention to commit mischief and trespass forcibly entered upon the property described as a purayidom, which was in the possession of the wife of Pw.1, thereby causing a loss of Rs. 25/- on account of the demolition of a fence on the southern side of the property and thereafter uprooting some 200 vegetable plants thereby causing a further loss of Rs. 200/-and instead they planted tapioca plants in 8 cents of the said property by putting up a fence on the western side of a portion of the property which was also reduced to their possession. On the basis of the first information a crime was lodged and the investigation conducted by the police resulted in laying a charge against the respondents.

3. The case came up for hearing on 4 71969 when Pw.1 was examined in part. The case was then adjourned to 9 7 69 with the direction that the prosecution will produce the remaining witnesses. On 9-7-1969 Pw.1 was absent So, the case was adjourned to 18 7 69 on which date Pws.1 and 2 were examined and cross-examined. During the cross-examination of Pw.1, three documents were sought to be proved through him. They were Exts. D1 to D3. After examination of Pws.1 and 2, the learned Magistrate recorded that "No other witness" and then he posted the case for disposal to 23 7 69 on which date the order of acquittal was passed is favour of the respondents under S.251 A (11) Cr. P.C.

4. It is contended on behalf of the revision petitioner that the lower court was wrong in acquitting the respondents without the examination of all the witnesses who were present in court. With regard to the presence of the witnesses in court, there was no mention made anywhere in the record except the statement in the case sheet that "No other witnesses." But, at the same time, the learned Magistrate in page 3 of his judgment stated as follows: "As the evidence of the other witnesses cited in the charge cannot improve matters the case was taken up for disposal. The accused have marked Exts.1 to 3". Thereafter, the learned Magistrate on an examination of the evidence of pws.1 and 2 came to the conclusion that, "he cannot but find that this is essentially a civil dispute and it is not for this court to consider the merits of the rival contentions and decide as to who was actually in possession of the property in question." It is clear that the conclusion of the Magistrate was not based upon the evidence in the case. On the evidence on record he should have found the person in possession of the property. His finding that a civil court alone can settle the dispute between the rival claims is not in keeping the tradition of criminal courts.

5. That apart, the learned Magistrate should have complied with the provisions of Sub-section (7) of S.251A Cr.P.C. which enjoins upon the Magistrate on the date fixed for the hearing of the case to proceed with such evidence as may be produced in support of the prosecution. In the absence of any guidance from the records in the instant case, it cannot be said that the witnesses were not present. However, even if they were not present, the learned Magistrate should not have stated that the evidence of other witnesses cited in the charge cannot improve matters and, therefore, he was to take up the case for disposal.

5. The question for decision is whether in a warrant case instituted on a police report it is open to a Magistrate after recording some evidence to cut short the trial and refuse to examine the remaining prosecution witnesses and to proceed to record an order of acquit