The Magistrate has a duty to examine witnesses under Section 540 of the Code of Criminal Procedure if the prosecution fails to do so, even in cases instituted on a police report under Section 251A.

C. B. BHARGAVA, J.

( 1 ) SINCE these two appeals by the State raise a common question of law, they are being disposed of by this one judgment.

( 2 ) IN appeal No. 666 of 1963, respondent Nandkishore was prosecuted under section 279 of the Indian Penal Code. It was alleged that the respondent while driving truck No. RJA 165 rashly and negligently caused injuries with it to a cow which fell down on the ground and died two days after. Since the case was instituted on a police report, the learned Magistrate first Class Rajgarh adopted the procedure as is provided under Section 251 -A of the Code of Criminal Procedure. A charge was framed against the accused on 19th October, 1962. The accused did not plead guilty and claimed to be tried. The case was fixed for recording evidence of the prosecution witnesses on 4-12-1962, 15-1-63, 12/3/1963 and 19/3/1963, but the prosecution failed to produce any witness. The learned Magistrate closed the prosecution evidence and observed that there was no duty of the Magistrate to issue summons to the prosecution witnesses because there was no such provision under Section 251a of the Code of Criminal Procedure. In this connection he also referred to a decision of the Calcutta High Court in Sm. Jyotirmoyee Bose v. Birendra Nath Prodhan, AIR 1960 Cal. 263 and another judgment of the Allahabad high Court in State v. Ram Lal, 1961 (2) Cri LJ 331 (All ). He, therefore, acquitted the accused on 19th March, 1963.

( 3 ) IN Criminal Appeal No. 667 of 1963, accused Harpholi on the report of the police was prosecuted under Section 54 of the Rajasthan Excise Act. A charge was framed against the accused on 3rd July. 1962 Thereafter the case was fixed for recording evidence of the prosecution witnesses on 11-12-1962, 21-5-63, 26/3/63 and 21/5/1963. The prosecution did not produce any evidence on the aforesaid dales. The learned Magistrate acquitted the accused on the same grounds as were mentioned by him in the case of Nandkishore. The State has now come up in appeal against these orders of acquittal. The respondents despite service of notice of appeal on them have not appeared in this Court.

( 4 ) THE main question for decision in these appeals is whether the learned magistrate was right in acquitting the accused even though the prosecution remained negligent in producing its witnesses at the trial, The contention of the learned counsel appearing for the State is that the Magistrate should not have refused to issue summons to the witnesses when such request was made to him on behalf of the prosecution and at any rate even if the prosecution had failed to produce its witnesses it was the duty of the Magistrate as well as to have summoned and examined the witnesses under Section 540 of the Code of Criminal procedure for the just decision of the case. In support of his contentions learned counsel has relied on State of Orissa v. Sib Charan Singh AIR 1962 Orissa 157. Nathuram Darjee v Pannalal Agarwala, AIR 1961 Assam 97, State of Bihar v. Polo mistry, AIR 1964 Pat. 351, Public Prosecutor v. M. Sambangi Mudaliar, AIR 1965 mad. 31, and State v. John Abraham, 1961 (2) Cri LJ 92 (Ker ).

( 5 ) IN my view the contentions raised by the learned counsel are not without force.

( 6 ) BEFORE the amendment of the Code of Criminal Procedure by Act No. XXVI of 1955, no separale procedure was provided for the trial of cases instituted on a police report. By the Amending Act, Section 251-A was inserted in the Code of criminal Procedure which provided procedure for the trial of cases instituted on a police report. Section 251-A is a self-contained section and lays down the procedure for the trial of cases instituted on a police report. The object underlying section 251-A was to provide speedy disposal of warrant cases so that the accused may either be discharged or the trial is brought to a speedy end in the conviction or acquittal of the accused as the case may be. Before Section 251-A was inserted in the Code, the p