JUDGMENT

P.N. Bakshi, J. - This reference has been made by the Additional District Magistrate, Bareilly,dated 11th June, 1971 for quashing an order of the Sub- Divisional Magistrate, Baheri dated 29th March, 1971 rejecting the prayer of the Assistant Public Prosecutor for adjournment of the case to enable him to summon two prosecution witnesses namely the Excise Inspector and the Investigating officer.

2. Jhandu was challaned by police under section 60 of the Excise Act. The charge sheet was received in court on 14th December, 1970. Having been charged under the aforesaid section on 3rd February, 1971 the case was fixed for prosecution evidence on 21st March, 1971. That date being a Sunday the case was taken up the following date i. e. on 22nd March, 1971. The evidence of the witnesses who were present was recorded. The prosecution witnesses 1 to 5 and 8, though served, did not appear. The Assistant Public Prosecutor applied for adjournment and the Magistrate passed an order issuing non-bailable warrants against the aforesaid witnesses. 29th March, 1971 was fixed for evidence. He also ordered for the issue of summonses against P.Ws. 6, 10 and 11. 30th March, 1971 was fixed for defence. On 29th March, 1971 the Sub-Divisional Magistrate examined P.Ws. 3 to 6. There- after the Assistant Public Prosecutor again made a request for adjournment to enable him to produce the Excise Inspector and the Investigating Officer. This prayer was rejected by the Sub- Divisional Magistrate, on 30th March, 1971. It is against this order that a re- vision was filed before the Additional District Magistrate Bareilly, who has made a reference to this Court.

3. I have heard counsel for the State and have also perused the record. In my opinion, the reference is well-found- ed. In a warrant case after the framing of a charge the procedure Prescribed under section 251-A Cr.P.C. has to be followed. It has been held in State of U.P. v. Moti, 1970 A.W.R. 13 that in a warrant case a Magistrate has to resort to the coercive measures provided for in the Code to compel the attendance of witnesses. Non-attendance by the witnesses in court in obedience to the summons issued by Magistrate is punishable under section 485-A Lr. P. C. If the Sub-Divisional Magistrate found that the summonses issued to the Excise Inspector and the Investigating Officer had not been returned after due service he should have adopted coercive process to secure his attendance. In failing to do so the learned Magistrate has clearly committed an error of law. He was not justified in refusing to adjourn the case.

4. I, therefore, accept this reference and set aside the order of the Sub-Divisional Magistrate Baheri dated 29th March 1971. The Magistrate, shall now give an opportunity to the Assistant Public Prosecutor to produce his evidence. The case shall be proceeded with in accordance with the law.