State of Kerala vs George and Others

Joseph, J.—This appeal by the State is directed against the judgment of the Sub-Magistrate, Thiruvella, acquitting the respondents of offences under sections 143, 149, 341, 294 and 279 of the Indian Penal Code. The case was triable as a summons case under Chapter XX of the Code of Criminal Procedure, and the accused were acquitted u/s 245 of the Code. The case against the accused was one charged by the Sub-Inspector of Police, Thiruvella, and it came on for evidence on 18-10-1958. Neither the Prosecutor nor any witness for the Prosecution was present that day and the Magistrate adjourned the case to 12-11-1958 for evidence. Witnesses were not produced by the Prosecution that day either, and it appears that either after the case was taken up for disposal or was actually disposed off, a Head Constable who appeared for the Prosecution filed a report that summons may be issued to witnesses 1 to 6 in the charge-sheet and that the case be adjourned for evidence. The learned Magistrate rejected this report by the order; "Too late". The accused were acquitted that day on the ground that the Prosecution had not adduced any evidence.

When the case was heard before one of us, in the first instance, it was referred to a Division Bench in view of certain points raised by the learned Public Prosecutor, such as, that the Magistrate had no jurisdiction to acquit the accused u/s 245 as the case was one charged by the Police, that even if an order of acquittal could be passed u/s 245, the same could be made only after taking evidence for the Prosecution and that the proper section under which, the Magistrate could act was section 249. However, the learned Advocate-General who appeared for the State did not contend for the extreme position that the Magistrate could act only u/s 249. The main point on which he rested his case was that the Prosecution had made an application for issuing summons to witnesses 1 to 6, 14 and 15 in the charge-sheet and that the Magistrate ought to have summoned those witnesses or at least considered the prayer for summoning them, before acquitting the accused. It was stated that the application was made in the charge-sheet itself which concluded with the prayer that witnesses 1 to 6, 14 and 15 should be summoned and examined. According to the learned Advocate-General, this prayer in the charge-sheet has to be treated as an application for issue of summons to those witnesses and a separate application in this behalf is unnecessary. In view of the clear submission in the charge-sheet, we are inclined to accept this argument. In this view it must be held that the learned Magistrate failed to exercise his discretion in the matter. It is open to a Magistrate trying a summons case to grant or refuse the prayer for issuing summons to witnesses, but such discretion must be exercised and it must also appear to have been exercised. So far as this case is concerned, the learned Magistrate does not appear to have been aware of this prayer to issue summons to some of the witnesses for the Prosecution and it is therefore clear that he failed to exercise his discretion in the matter. The acquittal must in these circumstances be quashed.

In the view we have taken, it has become unnecessary to consider whether a Magistrate trying a summons case can acquit the accused u/s 245 of the Code of Criminal Procedure, where the Prosecution fails to adduce any evidence. We have already stated that the learned Advocate-General did not contend that the only action the Magistrate could take under such circumstances was u/s 249 only. In the result, we set aside the acquittal and order retrial of the case in accordance with law. In the report filed on 12-11-1958, the Prosecutor has limited the prayer for issue of summons to witnesses 1 to 6 in the charge-sheet and the Magistrate is directed to consider this prayer and pass orders before proceeding with the trial. The criminal appeal is allowed as indicated above.