Magistrate cannot compel witnesses to give evidence.

Order.*- The question in this criminal appeal is whether the trial Court can acquit the accused under section 251-A(11) of the old Criminal Procedure Code in a warrant case after charges are framed when the prosecution altogether fails to take any interest though several adjournments have been given. Despite this total absence of interest taken by the prosecution, is the Court required to summon the witnesses itself to conduct the trial and dispose of the case on its merits? In Public Prosecutor v. Gundu Rao1, Punnayya, J., took the view that it is the duty of the Magistrate to take coercive steps to compel the attendance of prosecution witnesses. In so doing, my learned brother has relied on the decision of Mirza, J. in Public Prosecutor v. Pachiyappa2, and disagreed with the view of the Calcutta High Court in Jyotirmoyee Bose v. Birendra Nath3.

In the circumstances, I think that it is better if a Division Bench decides this question. I therefore refer the criminal appeal to a Division Bench and direct that the papers be placed before the learned Chief Justice for posting.

Pursuant to the above order the appeal came on for hearing before a Division Bench consisting of Chennakesav Reddy and Madhava Rao, JJ.

Public Prosecutor, for Appellant.

B. Veerabhadra Rao, Advocate, for Respondent.

The judgment of the Bench was delivered by

Chennakesav Reddy, J*.-This appeal against acquittal preferred by the State Public Prosecutor is placed before us on reference made by our learned brother Sambasiva Rao, J. The learned Judge felt that there was divergence of judicial opinion on the point involved in the case. It is: whether a criminal Court cannot acquit the accused under section 251-A(11), Criminal Procedure Code (old) in the absence of the production of any evidence by the prosecution and whether it is duty bound to take coercive steps to compel the attendance of the prosecution witnesses in a warrant case even though the prosecution altogether failed to take any interest to produce the witnesses inspite of several adjournments taken by the prosecution for the production of the witnesses.

2. The relevant facts giving rise to the appeal lie in a narrow compass: The Excise Sub-Inspector, Pamidi, laid a charge-sheet before the Judicial First Class Magistrate, Gooty, against the accused V. Mune Naik, under section 34(a) of the Andhra Pradesh Excise Act alleging that he was found in possession of a mud pot containing two litres of arrack on 19th July, 1970. The charge-sheet was filed on 20th March, 1972. The case was taken on file as C.C. No. 287 of 1973. The accused appeared on 24th November, 1973 and charges were framed against him on 18th December, 1973 and summons were issued for the production of witnesses. The case underwent several adjournments from 18th December, 1973 to 29th October, 1974. For all the adjournments, the accused was present. But the prosecution witnesses were not produced nor the summons returned unserved. The learned Magistrate acquitted the accused under section 251-A(11), Criminal Procedure Code, on 29th October, 1974, observing:

“The accused has been regularly attending the Court for quite a number of adjournments for well over 10 months, in spite of the witnesses not being produced into Court. In spite of the learned A.P.P.Gr. II being appraised of the matter on the date of every adjournment, there seems to be no effect on the Excise Department to produce the witnesses. Thus, the case is pending since a long time. The Court, is therefore, inclined to came to the conclusion that the complainant has no interest, whatsoever, in the matter. So, I am constrained to infer, that the prosecution has no evidence in the case to adduce on their behalf and I further feel that it is not in the interests of justice that the accused be any more subjected to the harassment of this nature”.

The State has, therefore, preferred this appeal.

3. The question is whether it is the duty of the Magistrate trying the case under the warrant proce

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