The Magistrate can acquit the accused under Section 255(1) or Section 248(1) of the Cr.P.C. if the prosecution fails to produce witnesses after the court has given it sufficient time and opportunities to do so, and the court is left with no other alternative but to acquit the accused for want of evidence.

PAUL, J. :- These appeals which have been preferred by the State represented by the learned. Public Prosecutor against the orders of the learned Judicial Second Class Magistrate of Namakkal acquitting the respondent-accused in each case of an offence punishable under Section 4(1)(b) of the Tamil Nadu Prohibition Act are before us, inasmuch as on a reference by one of us, before whom the appeals originally came up for hearing, the matter has been placed before this Full Bench since the matter involved a question of law of public importance, in regard to which question of law there have been divergent views of various High Courts.

2. Of the two questions which have been referred to this Full Bench, the first one, namely, whether under Section 255 (1) Cr. P.C., a Magistrate can acquit the accused if the prosecution fails to apply for the issue of summons to any witness and does not produce the witness for several hearings and does not serve summons on the witnesses despite having been granted sufficient opportunity to serve the summons or to produce the witnesses, is the one that directly arises for determination in these appeals. The second question which arises for determination by us incidentally is whether a Magistrate can acquit the accused under Section 248(1) Cr. P.C., if the prosecution does not apply for the issue of summons to any of the witnesses and does not produce the witness for several hearings and does not serve the summons on the witnesses despite having been granted sufficient opportunities to serve the summons on the witnesses or to produce the witnesses.

3. In all these appeals, the learned Magistrate acquitted the accused under Section 255(1) Cr. P.C., on the ground that even though the cases had been posted for hearing on various dates and summons had been issued to the witnesses for all the hearings, the witnesses were not produced on any of the hearing dates and in spite of a notice issued that the case would be disposed of without examining the witnesses if they are not produced the prosecution did not choose to let in any evidence and as such the Magistrate found that the prosecution had no evidence to let

4. Section 81 Cr. P.C. 1861, the Magistrate to issue a warrant.

5. We shall first examine the provisions of the Criminal Procedure Code of 1973, which have relevance to this matter.

6. Section 255(1), Cr. P.C., under which the accused have been acquitted in these cases states as follows :-

"If the Magistrate, upon taking the evidence referred to in Section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilty, he shall record an order of acquittal".

Section 254, Cr. P.C., states as follows :-

"(1) If the Magistrate does not convict the accused under Section 252 or Section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his difference.

(2) The Magistrate may if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.

(3) The Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in court.

7. It will be noticed that under Sub-Section (1) of Section 254, the Magistrate is enjoined to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. It was to be noted that under that Sub-Section a duty is cast on the prosecution to produce its evidence and likewise on the accused to produce evidence in his defence, Sub-Section (2) of Section 254 makes provision for the prosecution or the accused to seek the assistance of the court in p