( 1 ) THE present revision petition is against the order dated 17. 7. 1989, passed by the Sessions Judge, Panna, in S. T. No. 70/89 acquitting the non-appellant No. 1 because of the non attendance of the remaining prosecution witnesses.

( 2 ) THE brief facts are that the police of police- station Devendranagar filed a challan against the non-applicant No. 1 on the basis of complaint lodged by the applicant under Section 376, Indian Penal Code. The trial programme was submitted by the prosecution. The trial was fixed for prosecution evidence on 7. 3. 1989 to 9. 3. 1989. On 7. 3. 1989 since the Presiding Officer was on leave, therefore, the trial was adjourned to 2. 5. 1989 to 4. 5. 1989. On 2. 5. 1989 because of non-issuance of summons the trial was again adjourned and fixed for 22. 6. 1989, 23. 6. 1989 and 24. 6. 1988. On 22. 6. 1989 prosecutrix Nathibai was examined. On 23. 6. 1989 the prosecution witnesses. Ku. Adli, Sahodrabai, Sheopratap Singh Constable, Harilal and one Gopal Prasad were examined and cross-examined. On 24. 6. 1989, Dr. D. C. Mahadik and Babulal Patwari were examined and cross-examined. One witness Ramkhilavan was given up by the prosecution. Prosecution filed on application for examining remaining witnesses. The application of the Public Prosecutor for issuing summons to remaining prosecution witnesses, Sakhendra, Ramlakhan, Raghuraj Singh, Ramprem Constable, R. S. Paribar, Sub-Inspector and Dr. (Smt. Kamlesh was allowed. It was ordered by the court that the summons be issued to these witnesses. The case was then fixed for examination of these witnesses on 17. 7. 1989. On 17. 7. 1989, no witness was present because summonses were not issued by the Court, but the Court closed the prosecution case on the ground that summonses were not taken by the prosecution and the prosecution witnesses were not served. The prosecution case was closed and was fixed for orders on 21. 7. 1989. The applicant-prosecutrix immediately came up before this court on 20th July, 1989. The revision petition was admitted by this court and further proceedings before the lower court were stayed. This stay order was confirmed subsequently on 16. 10. 1989.

( 3 ) THE submission of the learned counsel for the applicant is that it is the duty of the Court to have issued the summonses. In case, the witnesses do not attend, the coercive process ought to have been issued, the Court ought not have closed the prosecution case when important prosecution witnesses remained to be examined.

( 4 ) THE non-applicant No. 2 State though has not filed any revision, but fully supports the submission of the applicant.

( 5 ) THE submission of the learned counsel for the non-applicant No. 1 is that the prosecution was negligent in not getting the summonses issued and the case was adjourned earlier also for want of prosecution witnesses.

( 6 ) HAVING heard the submissions of the learned counsel for the parties and after perusing the order-sheets of the Court below, I am of the view that this revision petition deserves to be allowed. For better distinction, section 230 of the Code of Criminal Procedure 1973 is reproduced below: -230. Date for prosecution evidence.- If the accused refuses to plead, or does not plead, or to be tried or is not convicted under section 229, the Judge shall fix a date for the examination of witnesses, and say on the application of the prosecution, issue any process for compelling the attendance of any witness or the production of any document or other thing. ( 7 ) EARLIER such provision was under section 251-A of the Old Code 1898. The relevant extract is as under:251-A. Procedure to be adopted in cases instituted on police report.- (1) (7) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution: Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined, or re