The Court held that the Magistrate erred in rejecting the application without applying his mind to the facts and circumstances of the case. The Court also held that the evidence of the witnesses was essential to the just decision of the case.

G. K. MISRA, J.

( 1 ) THIS Revision arises out of G. R. Case No. 595 of 1963. It has a chequered career. Information to the police was given by the complainant on 28-3-63 about an occurrence of 27-3-63 at about 11 P. M. Police submitted a final report. On a protest being filed by the complainant, charge sheet under Sections 147/323 I. P. C. was called for against all the accused. The trial proceeded. On 4-3-64 Sri V. S. Rao, Magistrate, 1st Class, acquitted all the accused holding that the trial was illegal and without jurisdiction. The police did not challenge this order. In Cr. Rev. 167 of 1964 filed by the complainant, this order was quashed and the learned magistrate was directed to proceed with the trial in accordance with law. Though a Prosecuting Inspector is in charge of the case, the learned Magistrate has permitted an advocate of the complainant to conduct the case. In fact the main responsibility in the conduct of the case for the prosecution appears to be in the advocate engaged by the complainant. On 28-4-65 the advocate for the complainant filed an application making the following allegations-

(1) That in the above case the police having been gained over by the accused persons submitted a final report and the informant had to move the S. D. O. for calling for a charge-sheet. (2) That the police during their investigation had examined M/s. Tikain parida and Satyananda Naik who have proved the informant's case and as the Police were gained over be the accused persons their names have been clearly omitted in the charge-sheet. (3) That the aforesaid Tikam Parida and Satyananda Naik are important witnesses for the prosecution and it is just and expedient that they should be summoned as P. Ws. or as C. Ws.

Prayer : the aforesaid Tikam Parida and Satyananda Naik be summoned as either p. Ws. or C. Ws. The petition has been labelled as one under Section 540 C. P. C. On his application the following order was passed, by the learned Magistrate on 28th April l965 :-

"heard both P. I. and the lawyer engaged by the injured. Heard also the lawyer for accused. Perused the case diary. But could not find out therein the name of these two persons sought to be examined. I. O. did not examine them during investigation it seems and for that it may be said that they did not witness the occurrence. So now at such a late stage it will not serve any useful purpose if the said persons are examined at the instance of the complainant. Moreover, the petition for examining the said persons is not filed by P. I, The private lawyer has not obtained the consent of the P. I. even to assist him in the matter. So on this count the petition is also incompetent. In the result I dismiss the petition and put up the case to 15th May 1965 for accused's statement. "

Against this order the Criminal Revision has been filed. The grounds which were taken in the application before the Magistrate have also been taken in the revision application.

( 2 ) MR. Misra urges that without applying his mind to the facts and circumstances of this case and the contents of the petition, the learned Magistrate passed the aforesaid order and that it should be set aside.

( 3 ) ON analysis of the order of the Magistrate it would appear that the application to examine two more witnesses was rejected on 2 grounds-- (1) that the advocate appearing privately for the complainant, did not obtain consent of the Prosecuting inspector in presenting the application and (2) that the two witnesses, sought to be examined, had not been examined by the Investigating Officer during investigation and so it can be said that they did not witness the occurrence.

( 4 ) BOTH the grounds require careful examination. Section 493, Cr. P. C. reads thus :-The public prosecutor may appear and plead without any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal, and if any private person instructs a pleader to prosecute in any court any person in