This is an appeal by the State against the order dated 9-7-1968 passed by Shri R. S. Rastogi. Sub-Divisional Magistrate Sahaswan, district Budaun, acquitting the accused who is respondent before this Court in a case under Section 25(a) of the Arms Act.

2. The relevant facts are that after the charge had been framed by the Court below against the respondent, though some dates were fixed for prosecution evidence. the case could not be taken up for some reason or the other. Ultimately 9-7-1968, the date on which the impugned order was passed, was fixed for the production of prosecution evidence. It appears from the order passed by the lower court that four prosecution witnesses were present but neither the public prosecutor nor the Assistant Public Prosecutor appeared to produce the witnesses before the learned Magistrate under sub-Section (7) of Section 251-A of the Code of Criminal Procedure. The learned Magistrate thereupon sent information to the Public Prosecutor but in spite of it no one put in an appearance for the prosecution and thereafter, the impugned order was passed discharging the witnesses and acquitting the accused. It may also be mentioned that it appears from an application on the record that while the order was being passed at about 4.05 p.m. the learned Assistant Public Prosecutor appeared before the court and moved an application informing the court that he waited for sometime and as the case was not taken up. he had gone to another court to attend some other case and so could not be present in the court of the learned Sub-Divisional Magistrate. This application was taken up by the learned Magistrate after the impugned order had already been passed. Therein the learned Magistrate observed that the case was taken up at 2.55 p.m. and as neither the Public Prosecutor nor the Assistant Public Prosecutor put in an appearance nor any information was sent to the learned Magistrate and the Assistant Public Prosecutor could not be found by the court staff, he passed the impugned order after waiting till 4.05 p.m.

3. It was argued on behalf of the appellant that a perusal of all the sub-sections of Section 251-A of the code of Criminal Procedure will show that after the court has framed a charge, it could not acquit an accused under sub-Section (11) of Section 251-A of the Code of Criminal Procedure which is the only sub-Section under which an accused can be acquitted after the framing of charge, till the prosecution evidence has been produced. the witnesses examined by the prosecution have been cross-examined. the accused is called upon to enter upon his defence after he has been examined under Section 342 of the Code of Criminal Procedure and the Court has considered the evidence on the record including the defence evidence. if any. It was argued that in a case of this nature where the prosecution witnesses were present but no one was present on behalf of the prosecution to produce them before court, the court could not acquit the accused and it was the duty of the court to examine the witnesses under Section 540 of the Code of Criminal Procedure in order to do justice in the case and to decide whether the charge framed against the accused has been made out or not. In support of the contention put forward the attention of this Court was drawn to the observations made by the Mysore High Court in the State of Mysore v. Kallilulla Ahmad Shariff, (AIR 19711 Mys 60), by the Rajasthan High Court in State v. Nandkishore (AIR 1967 Raj 228) and by the Madras High Court in Public Prosecutor v. M. Sambangi Mudaliar (AIR 1965 Mad 31). After considering the rulings cited I find myself with great respect unable to agree with reasons given therein.

4. It is one of the fundamental principles of criminal jurisprudence that an accused must be deemed to be innocent or not guilty till the contrary is proved. This proposition of law is applicable to all cases whether it is a warrant case tribal under Section 251-A of the Code of