State of Kerala vs Gopalan and Others

P. Govinda Menon, J.—The order of the 1st Class Magistrate, Peermade acquitting the accused u/s 251-A (11), Cri. P. C. is clearly unsustainable and has to be set aside. The charges against the accused were for offences under Sections 143, 147, 341 and 506(ii), I. P. C. On a perusal of the records u/s 170, Cri. P. C., the learned magistrate framed charges against the accused pleaded not guilty.

The case came up for hearing several times and for some reason or other the case was adjourned. On 10-7-1959 five witnesses including the 1st informant were present. For want of time, the learned magistrate adjourned the case and bound over the witnesses to be present for the next hearing. On that day the case was again adjourned. Finally when it came for hearing on 4-9-1959 witness No. 1 who happened to be the informant was not present, but all the other witnesses were present. Still without recording their evidence, the learned magistrate acquitted the accused.

Under Section 251-A (7) the magistrate is bound to take all such evidence as may be produced in support of the prosecution. Admittedly in this case some of the prosecution witnesses were present and no reason whatsoever is given as to why they were not examined. Merely because the 1st informant is absent is no ground to acquit the accused. u/s 251-A (11), it is only if the magistrate finds the accused not guilty that he has got the right to record an order of acquittal.

In the result the appeal is allowed, the order of acquittal is set aside and there will be a retrial in accordance with law.