The court emphasized the duty of the court in the interests of justice to summon witnesses whose evidence is necessary for a just decision of the case, and held that the court has the inherent power to summon material witnesses and examine them under S.540, Crl. P.C.

1. This is an appeal filed by the State against the order of acquittal of the respondent who was the 1st accused in C. C. 2/59 on the file of the District Magistrate (Judicial), Quilon. There were originally two accused in the case. They were charge sheeted by the Karunagappally police for offences under S.454, 452, 323, 506 (2) and 109, I.P.C. The second accused in the case being a juvenile the case was transferred to the file of the District Magistrate, Quilon on 3-6-59.

2. On that day the accused were questioned and charges were framed to which they pleaded not guilty. The case was then adjourned to 15-6-59 and summons was directed to be Issued to the witnesses numbers 1 to 10 shown in the charge sheet. On 15-6-59 witnesses 1 to 9 though served with summons did not attend court. Bailable warrants were therefore issued returnable by 22-6-59. The investigating officer also did not attend the court as he was pre-occupied with important duties in connection with the political agitation which was then in existence in the State. On 22-6-59 again Pws.1 to 7 were not served with summons as no police men were available for service of summons as all of them were otherwise engaged. The Sub-Inspector also reported that due to the then existing situation he was not in a position to attend the court. The case was therefore adjourned to 1-7-59 and fresh summons was ordered, but again summons could not be served. On 1-7-59 at the request of the Assistant Public Prosecutor, the case was adjourned to 22-7-59. On 22-7-59 again none of the witnesses were present as no summons was served on them. The first informant was also not present probably for the reason that she was also not informed of the hearing date. The Assistant Public Prosecutor seems to have expressed his helplessness in the matter and the learned District Magistrate acquitted the accused under S.251 (A), C1.(11), Crl. P.C. holding that no evidence had been let in to bring home the guilt to the accused.

3. The State has therefore come up in appeal against the order of acquittal of the 1st accused Later a petition was filed to implead the second accused also, but at the time of argument the petition was not pressed by the learned Public Prosecutor. Our learned brother Raman Nayar, J., before whom this appeal came up originally for hearing referred the case to a Division Bench. The question that is referred is whether the production of evidence in support of the prosecution under sub-section 7 of S.251 A is not something which the Magistrate trying the case has the power and the duty to secure.

4. S.252 of the Criminal Procedure Code as it stood before the amendment by Act XXVI of 1955 applied to the trial of warrant cases whether instituted on a police report or otherwise. Sub-section 2 of S.252 reads as follows:

"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 summon to give evidence before himself such of them as he thinks necessary".

So the Magistrate was bound to ascertain the names of persons able to give evidence and summon such of them as he thought necessary. S.252, Criminal Procedure Code is now confined to eases instituted otherwise than on a police report and the trial of cases on a police report is governed by the amended S.251A. Sub-section 7 of S.251A says:

"On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution".

It is therefore argued that the Magistrate is not bound in cases instituted on a police report to issue process to the witnesses, but he need examine only witnesses as may be produced by the prosecution. It is argued that there is no provision enabling him to issue process and get the witnesses. Reference was made to sub-section 2 of S.170, Crl. P.C. where the officer in charge of a police station is given powers to require the