Judgment :- 1. This is an appeal filed by the State against the order of acquittal of the respondent who was the 1st accused in C. C. 2/59 on the file of the District Magistrate (Judicial), Quilon. There were originally two accused in the case. They were charge sheeted by the Karunagappally police for offences under S.454, 452, 323, 506 (2) and 109, I.P.C. The second accused in the case being a juvenile the case was transferred to the file of the District Magistrate, Quilon on 3-6-59. 2. On that day the accused were questioned and charges were framed to which they pleaded not guilty. The case was then adjourned to 15-6-59 and summons was directed to be Issued to the witnesses numbers 1 to 10 shown in the charge sheet. On 15-6-59 witnesses 1 to 9 though served with summons did not attend court. Bailable warrants were therefore issued returnable by 22-6-59. The investigating officer also did not attend the court as he was pre-occupied with important duties in connection with the political agitation which was then in existence in the State. On 22-6-59 again Pws.1 to 7 were not served with summons as no police men were available for service of summons as all of them were otherwise engaged. The Sub-Inspector also reported that due to the then existing situation he was not in a position to attend the court. The case was therefore adjourned to 1-7-59 and fresh summons was ordered, but again summons could not be served. On 1-7-59 at the request of the Assistant Public Prosecutor, the case was adjourned to 22-7-59. On 22-7-59 again none of the witnesses were present as no summons was served on them. The first informant was also not present probably for the reason that she was also not informed of the hearing date. The Assistant Public Prosecutor seems to have expressed his helplessness in the matter and the learned District Magistrate acquitted the accused under S.251 (A), C1.(11), Crl. P.C. holding that no evidence had been let in to bring home the guilt to the accused. 3. The State has therefore come up in appeal against the order of acquittal of the 1st accused Later a petition was filed to implead the second accused also, but at the time of argument the petition was not pressed by the learned Public Prosecutor. 3. The State has therefore come up in appeal against the order of acquittal of the 1st accused Later a petition was filed to implead the second accused also, but at the time of argument the petition was not pressed by the learned Public Prosecutor. Our learned brother Raman Nayar, J., before whom this appeal came up originally for hearing referred the case to a Division Bench. The question that is referred is whether the production of evidence in support of the prosecution under sub-section 7 of S.251 A is not something which the Magistrate trying the case has the power and the duty to secure. 4. S.252 of the Criminal Procedure Code as it stood before the amendment by Act XXVI of 1955 applied to the trial of warrant cases whether instituted on a police report or otherwise. Sub-section 2 of S.252 reads as follows: "The Magistrate shall ascertain, from the complainant or otherwise the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary". So the Magistrate was bound to ascertain the names of persons able to give evidence and summon such of them as he thought necessary. S.252, Criminal Procedure Code is now confined to eases instituted otherwise than on a police report and the trial of cases on a police report is governed by the amended S.251A. Sub-section 7 of S.251A says: "On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution". It is therefore argued that the Magistrate is not bound in cases instituted on a police report to issue process to the witnesses, but he need examine only witnesses as may be produced by the prosecution. It is argued that there is no provision enabling him to issue process and get the witnesses. Reference was made to sub-section 2 of S.170, Crl. P.C. where the officer in charge of a police station is given powers to require the complainant and the prosecution witnesses to execute a bond to appear before the Magistrate and to give evidence, and proviso to S.171, Crl. Reference was made to sub-section 2 of S.170, Crl. P.C. where the officer in charge of a police station is given powers to require the complainant and the prosecution witnesses to execute a bond to appear before the Magistrate and to give evidence, and proviso to S.171, Crl. P. C., says that in case the complainant or witness refuses to attend or to execute a bond as directed in S.170, the officer in charge of the police station may forward him in custody to the Magistrate, who may detain him in custody until he executes such bond, or until the hearing of the case is completed. S.92 likewise gives powers to the court to issue a warrant directing the person who was bound by any bond to appear but who fails to appear to be arrested and produced before him. The argument of the learned counsel for the respondent is that in view of the above provisions enabling the prosecution to produce the witnesses Legislature advisedly omitted to add a provision similar to sub-section 2 of S.252 for the trial of cases instituted on a police report. We are not so sure that it is a wilful omission. It may as well be due to an oversight. 5. Reference was also made to the decision in State v. John Abraham (1959 KLT. 840) where our learned brother Joseph, J., has held that the duty of the court under sub-section 7 of S.251 A is only to take evidence which is ready when the case is taken up for hearing and has referred to the absence of a provision in this section similar to sub-section 2 of S.252 thereby implying that in a case instituted on a police report there is no provision by which a Magistrate can compel the attendance of a material prosecution witness. Literally construed the section no doubt might indicate that the Magistrate is not bound to issue process for securing the presence of the witnesses for prosecution. 6. Literally construed the section no doubt might indicate that the Magistrate is not bound to issue process for securing the presence of the witnesses for prosecution. 6. But even so, we do not share the view that when the police on whom the primary responsibility of ensuring that the prosecution witnesses attend the court, for some reason or other neglect to do their duty and do not produce the evidence in support of the prosecution the Magistrate is helpless and the only thing that the Magistrate can do in such a situation is to acquit the accused. Even in the absence of a specific provision in S.251 A to summon witnesses, the court has always the inherent power to summon material witnesses and examine them. S.540, Crl. P.C. reads as follows: "Any court may at any stage of any inquiry, trial or other proceedings under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re examine any such person if his evidence appears to it essential to the just decision of the case". So the latter part of the section says that the court shall summon and examine any person if his evidence appears to it essential to the just decision of the case. It is therefore bound to consider whether in a particular case the examination of witnesses is, essential for the proper disposal of the case. 7. In a recent case Bahore, s/o. Kalloo v. Ghure s/o. Balwant (AIR. 1960 Rajasthan 15) the court examined a witness under S.540, Crl. P.C. in a proceeding under S.145, Crl. P. C. On behalf of the revision petitioner therein it was argued that the Magistrate had no jurisdiction to examine the court witness and that the order passed on the basis of that evidence, is without jurisdiction Reliance was placed on the proviso to sub-section [4] of S.145, Crl. P.C. The proviso says that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein. The contention was that there being no affidavit of the witness, the Magistrate had no jurisdiction to examine him in the enquiry. P.C. The proviso says that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein. The contention was that there being no affidavit of the witness, the Magistrate had no jurisdiction to examine him in the enquiry. It was held: "The proviso is merely an enabling provision of law which entitled the Magistrate to summon and examine any of the persons whose affidavits have been filed on behalf of the parties if he so desires in order to decide the question of possession; but the proviso does not preclude the Magistrate from calling as a witness any other person that he thinks proper to examine. Sub-section [9] of S.145 contemplates such a situation. Sub-section (9) says that the Magistrate, if he thinks fit, at any stage of the proceedings under the section, on the application of either party, issue summons to any witness directing him to attend or to produce any document or thing. If on the application of either party to the proceeding the Magistrate can do so, he can do so equally for the ends of justice of his own accord. Indeed ?. 540 of the Code empowers the Magistrate at any stage of any enquiry, trial or other proceeding tinder the Code to summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined, if his evidence appears to be essential to the just decision of the case. In view of these provisions, it is obvious that the contention is unfounded. It would be indeed surprising if the proviso to sub-section [4] of S.145 of the Crl. P. C. was capable of bearing the interpretation which is sought to be placed upon it by the learned counsel. In that case it would be difficult for the magistrate to satisfy the needs of justice even if he thinks that the evidence of a particular witness is necessary in order to decide the matter of possession". 8. Dealing with the powers of the court to examine witness under S.540 Crl. P.C. in Rengaswami Naicker v. Muruga Naicken [AIR. In that case it would be difficult for the magistrate to satisfy the needs of justice even if he thinks that the evidence of a particular witness is necessary in order to decide the matter of possession". 8. Dealing with the powers of the court to examine witness under S.540 Crl. P.C. in Rengaswami Naicker v. Muruga Naicken [AIR. 1954 Mad 169], Ramaswami, J., after discussing the case law says that: "Under S.540, the court has unrestricted powers of summoning a witness" and that "it is not only the prerogative but also the plain duty of a court to examine such of these witnesses as it considers necessary for doing justice between the State and the subject". The learned judge has quoted an extract from Burke in the Trial of Warren Hastings: "A Judge is not placed in the high situation merely as a passive instrument of the parties. He has a duty of his own, independent of them and that duty is to investigate the truth". Reference is also made to the observation of Lumpkin, J., in -'Epps v. State [U.S.A.]': "Counsel seek only for clients' success; but the judge must watch that justice triumphs". This decision, also brings to the forefront the paramount duty of the court in examining witnesses for a just decision of the case. In Ram Bali v. State (AIR. 1952 All. 289) dealing with the powers of a judge to examine court-witness, Desai, J., says that: "Sessions Judge is expected to try a criminal case intelligently and not leave everything in the hands of the Public Prosecutor and the defence counsel. It is his duty to find out whether the examination of any witness would be necessary in the interests of justice or not. He is bound to examine any witness whose evidence he considers essential in the interests of justice. He cannot evade this statutory responsibility by omitting to give all thought to the question whether the evidence of any witness left out by the parties is essential or not" It is not necessary to refer to other decisions but all those cases emphasise that even in cases where parties do not produce evidence, it is the duty of the court in the interests of justice to summon such of the witnesses whose evidence is necessary for a just decision of the case. The learned District Magistrate therefore ought to have bestowed thought on this matter and either adjourned the case for production of the prosecution witnesses by the investigating officer especially in this case where there was justifiable reasons for the non-production of the witnesses or he should have exercised his discretion under S.540, Crl. P.C., to summon and get the witnesses. The case was investigated by the police and charged. On a perusal of the relevant papers under S.173, Crl. P.C. the District Magistrate found that there was prima facie case to frame charges of cognizable offence. So even if the police failed to perform their duties and produce the witnesses, the court has the duty to enquire into the offences disclosed and to find out whether the accused was really guilty or not and for that purpose to examine the witness. Moreover, in this case the Magistrate had already issued summons to the witnesses and when they did not appear in court, had issued bailable warrants. We should think that it was certainly the duty of the court to have enforced their attendance in court. Therefore in the interests of justice this is eminently a fit case where we should set aside the order of acquittal. 9. The learned counsel for the respondent made a fervent appeal that this is not a case for ordering a retrial. On going through the facts of the case, as seen in the judgment, we do not agree that it is not a case which requires further enquiry. We do not want to say anything about the merits of the case lest it might prejudice either of the parties. We think that there should be a retrial in this case. In the result the order of acquittal is set aside and we direct that there should be a retrial against the respondent, the 1st accused in the case.