J. M. SHELAT, J. ( 1 ) THE charge- sheet cited besides Sukha Rayla and Kali 8 other persons as witnesses. The charge-sheet also stated that summons should be issued by the Court to ensure the presence of the complainant and the witnesses. Before the charge was framed notices were issued by the Court on the 18th June 1960 calling upon the two accused to remain present. Accused No. 1 who was arrested was produced before the Court whereas accused No. 2 remained present with her surety. The case was then adjourned to the 22 June 1960 when copies of the papers relied upon by the prosecution were furnished to the two accused and receipts in respect of these copies were obtained from them. The case was then. adjourned to the 29th of June 1960. On the 29th June when the case was called out both the accused and the Police Prosecutor were present. The learned Magistrate considered the investigation papers and after hearing the Police Prosecutor framed a charge as aforesaid. He also recorded the statements of both the accused who pleaded not guilty and claimed to be tried. The case was then adjourned for hearing on the 8th of July 1960 after the accused were informed of the adjourned date. The Roznama for the 29th June 1960 indicates that though as many as 10 persons were cited as witnesses in the charge-sheet the Police Prosecutor applied for summons only for witnesses Nos. 3 and 4. From the charge-sheet it appears that these witnesses were the injured woman Kali and her husband Sukha Rayla. On the 8th of July that being the adjourned date when the case was called out accused No. 1 was present having been brought from the jail and accused No. 2 was also present. No witnesses for the prosecution were kept present and the summons which were issued against Bai Kali and Sukha Rayla were found to have been returned unserved. As no prosecution witnesses were thus present the learned Magistrate it would appear was obliged to adjourn the matter to the 20th of July 1960. No witnesses for the prosecution were kept present and the summons which were issued against Bai Kali and Sukha Rayla were found to have been returned unserved. As no prosecution witnesses were thus present the learned Magistrate it would appear was obliged to adjourn the matter to the 20th of July 1960. ( 2 ) THE endorsement in the Roznama under the date 8th of July 1960 shows that the learned Magistrate directed that the two prosecution witnesses Kali and Sukha Rayla in whose names the summons had been issued on the 29th June should be informed of the adjourned date and that they should be re-summoned. We presume that by the word resummoned what was meant was that fresh summons should be issued against them in view of the fact that the original summons had been returned unserved. On the 20th July 1960 when the case was again called out though both the accused were present none of the witnesses for the prosecution was present and even the summons which had been issued in the names of Bai Kali and her husband Sukha Rayla and sent to the Police Station at Songadh for service had not been returned either served or unserved by that police Station. It seems that the Investigating Officer had remained absent on all these dates. The Police Prosecutor made an application for adjournment on the ground that the summons issued by the Court had neither been served nor returned. The ground urged by the Police Prosecutor in that application does not appear to be satisfactory for it was not as if an attempt to serve the two witnesses had been made and the summons were returned unserved. On the contrary the Roznama under the date 20th July 1960 shows that the Police Station at Songadh had not cared to return the summons either served or unserved. The learned Magistrate in these circumstances rejected the application for adjournment as there was nothing to show that the Police Station at Songadh had made any attempt to serve the summons on the two witnesses and had not even returned the summons unserved to the Court. The learned Magistrate in these circumstances rejected the application for adjournment as there was nothing to show that the Police Station at Songadh had made any attempt to serve the summons on the two witnesses and had not even returned the summons unserved to the Court. Even on the 20th July 1960 the P. S. I. Songadh had not attended the Court nor had he sent any instructions to the Police Prosecutor to the effect that he had not been able to serve the summons on the two witnesses owing to any valid reason. ( 3 ) THE file of the Court of the learned Magistrate shows that after the case was adjourned on the 8th of July 1960 to the 20th of July 1960 an endorsement was sent by P. S. I. Songadh to the Head Constable at Uchhal with instructions to inform the two witnesses Kali and her husband of the order passed by the learned Magistrate. The file contains an endorsement purporting to be that of the Head Constable Uchhal to the effect that he had received the instructions of the P. S. I. on the 21st July 1960 that is to say after the adjourned date namely the 20th July 1960 On the 23rd July 1960 the P. S. I. made a report to the learned Magistrate stating therein that due to the postal strike his instructions regarding the learned Magistrates order dated 8th July 1960 had not reached the Outpost and therefore neither the notices nor the summons to the two witnesses had been serves. On the 20th July 1960 the learned Magistrate disposed of the case by acquitting the accused under sec. 251-A sub-sec. (11) of the Code of Criminal Procedure. ( 4 ) LOOKING at the various entries made by the learned Magistrate together with the endorsements of the P. S. I. Songadh and the Head-Constable Uchhal it is clear that the P. S. I. Songadh had remained indifferent and had not made any serious effort to serve the summons on Bai Kali and her husband Sukha Rayla. The excuse that it was due to the postal strike that he had not been able to serve the summons on the two witnesses does not appear to be correct. The excuse that it was due to the postal strike that he had not been able to serve the summons on the two witnesses does not appear to be correct. Assuming that there was a postal strike and letters therefore could not be despatched of delivered the police officer being aware of such a strike could have sent his instructions contained in his endorsement dated 9th July 1960 by a messenger. Even if that endorsement had been sent by him by post on the 9th of July 1960 he was bound to send a messenger to the Outpost at Uchhal when he did not receive any reply from the Head-Constable at Uchhal. Knowing that the case had been adjourned to the 20th July 1960 it was highly unlikely that he would take no steps to enquire from the Head Constable whether he had been able to notify the witnesses to attend the Court on the 20th July as directed by the learned Magistrate. Assuming that it did not strike him to take any further steps except sending his instructions by post when he found that there was no reply to him from the Head-Constable Uchhal he could have instructed the Police Prosecutor either by writing a letter or by remaining present in the Court at Vyara on the 20th July 1960 that he had not been able to serve the witnesses with the order passed by the learned Magistrate adjourning the case to the 20th July 1960. Evidently the P. S. I. Songadh did not care to inform the Police Prosecutor that he had not been able to serve the witnesses. It is clear that inspite of his knowing that the case had been adjourned at least on two occasions by reason of his not having been able to produce the prosecution witnesses in Court and inspite of his being aware that because of this reason the first accused at any rate had to remain in jail custody the P. S. I. had not taken any serious steps to produce the prosecution witnesses in the Court of the learned Magistrate. We are constrained to observe in these circumstances that the P. S. I. Songadh was not only indifferent to his duty but showed utter disregard and disrespect to the learned Magistrates Court. We are constrained to observe in these circumstances that the P. S. I. Songadh was not only indifferent to his duty but showed utter disregard and disrespect to the learned Magistrates Court. He appears to be also totally indifferent to the fact that owing to his dereliction of duty the first accused had to remain in jail custody for a period longer than he would otherwise have been required to be in the prosecution witnesses had been produced by him for their evidence. It is somewhat strange that out of the 10 witnesses cited by him in the charge-sheet the Police Prosecutor had applied for summons only for two witnesses viz. Bai Kali and her husband Sukha Rayla. That would be on the footing that he expected no difficulty in producing the rest of the witnesses for their evidence; and yet on both the occasions when the case had to be adjourned none of these other witnesses was kept present. If these witnesses had been kept present even though Bai Kali and her husband had not been served with summons the case could have been proceeded with. In those circumstances the learned Magistrate was right in rejecting the application for adjournment made on the 20th July by the prosecution. ( 5 ) THE learned Assistant government Pleader however contended that the learned trial Magistrate was not entitled to pass an order of acquittal on the ground of the absence of prosecution witnesses as the case was a warrant case on a police report and the learned trial Magistrate had already framed a charge against both the accused. It was contended that there is no provision in the Code to justify such an order of acquittal after a charge was framed against an accused person. In support of his contention the learned Assistant Government Pleader relied upon a decision in Har Kishan Das v. Emperor A. I. R. 1937 All. 127. In that case also the trial Magistrate had framed a charge and fixed the date for attendance of the complainant with witnesses for cross-examination by the accused; and on the complainant and the witnesses having failed to appear the learned Magistrate acquitted the accused refusing to adjourn the case inspite of an application made by the complainant for adjournment for a short time. In that case the charge-sheet was submitted to the Court on the 7th May 1936. In that case the charge-sheet was submitted to the Court on the 7th May 1936. On the order-sheet on that date it was directed that the case should be put up for further cross-examination on the 11th May 1936 and the complainant was directed to bring his witnesses for further cross-examination. The complainant and his witnesses did not arrive in the Court although the learned Magistrate waited for more than an hour. The learned Magistrate passed an order to the effect that the evidence which these witnesses had already given in examination-in-chief could not be taken into consideration unless they had submitted themselves for crossexamination by the accused. Bennet J. observed in that case that the application for adjournment was that the complainants witnesses had not arrived and that they were actually on the way to the Court and the adjournment applied for was only for 15 minutes. The learned Judge in these circumstances was of the view that the trial Magistrate acted with irregularity in refusing to grant such an application especially when the trial court was a court of a Special Magistrate where there were no fixed hours. He was also of the view that the learned Magistrate had neglected the provisions of sec. 256 (1) of the Criminal Procedure Code as they stood then which provided that when the accused had pleaded to the chargesheet he should be required to state at the commencement of the next hearing of the case or if the Magistrate for reasons to be recorded in writing so thinks fit forthwith whether he wished to cross-examine any and if so which of the prosecution witnesses shoes evidence had been taken. If the accused said that he wished to cross-examine the witnesses the witnesses named by him should be recalled. It appears that the learned trial Magistrate had not recorded any reasons on the 7th May for not asking this question nor had he entered in the order-sheet or the charge sheet that he had in fact put any such question. Even on the 11th May which was the next hearing the learned Magistrate had failed to put this question and also failed to record any reply of the accused to such a question. Even on the 11th May which was the next hearing the learned Magistrate had failed to put this question and also failed to record any reply of the accused to such a question. On these omissions by the learned Magistrate the High Court was of the view that the order of acquittal passed by the learned Magistrate was not proper; and was not in accordance with the provisions of the Code. On that basis the order of acquittal dated 11th May 1936 passed by the learned Magistrate was set aside and the learned Magistrate was directed to proceed with the case from the stage when the charge was framed. The learned Magistrate was also directed to enquire from the accused under sec. 256 (1) Cr. P. C. as it then stood whether he desired to cross-examine the witnesses for the prosecution and to recall such witnesses whose cross-examination the accused desired. It is difficult to see how on the facts stated above the decision of Bennet J. can possibly assist the learned Assistant Government Pleader. It was clearly a case where the learned Judge felt that the application for adjournment being only for 15 minutes and where the witnesses for the prosecution were actually on their way to the Court the rejection of such an application was improper especially when the learned Magistrate himself had failed to act in accordance with the provisions of sec. 256 (1) of the Code as they stood then. ( 6 ) THE learned Assistant Government Pleader also relied upon the decision in Ramswami Naicker v. Rangaswami Naicker 48 Cr. L. J. 97. In that case Yahya Ali of the High Court of Madras held that in a warrant case where after the charge was framed a case was transferred to another Magistrate and such Magistrate granted a de novo trial the effect of granting a de novo trial was not to wipe out the charge framed and therefore the Magistrate was not competent to pass an order of discharge of the accused under sec. 259 Cr. P. C. on the ground of absence of the complainant. It was there held that in such a case the High Court in revision could set aside the order of discharge even if it was viewed as an order of acquittal. 259 Cr. P. C. on the ground of absence of the complainant. It was there held that in such a case the High Court in revision could set aside the order of discharge even if it was viewed as an order of acquittal. In that case the case against the accused was first tried by the Sub-Magistrate of Sattur who after examining the prosecution witnesses famed a charge against the accused under sec. 324 and 323 of the Penal Code. Subsequently that case was transferred to another Magistrate who took it on his file on June 20 1945 Summons were then issued to the accused and a notice was issued to the complainant. Subsequently. the accused applied to the Magistrate for a de novo trial. The application was granted and all the prosecution witnesses were resummoned and re-heard and the case was then adjourned to September 18 1945 for the examination of the medical witness who was the only remaining prosecution witness. On the adjourned date the complainant was absent when called out and thereupon the learned Magistrate discharged the accused. Yahya Ali J. on these facts observed that in a warrant case were a charge had been framed the Magistrate was not competent in the absence of the complainant to pass an order of discharge under sec. 259 of the Code ignoring the charge already framed. He also held that even if the order of discharge were to be treated as one of acquittal the High Court could set aside such an order as such an order cannot be upheld. It is quite clear that so far as sec. 259 was concerned the learned Magistrate had no authority to pass an order of discharge once a charge was framed against an accused. That order even if treated as one of acquittal could not be upheld for the simple reason that evidence had already been recorded in that case and a charge had been framed. It was therefore the duty of the learned Magistrate to consider such evidence as was produced before him on behalf of the complainant and then pass the necessary order. The mere fact therefore that on the adjourned date the complainant was absent was no ground to pass an order of discharge or even an order of acquittal. It was therefore the duty of the learned Magistrate to consider such evidence as was produced before him on behalf of the complainant and then pass the necessary order. The mere fact therefore that on the adjourned date the complainant was absent was no ground to pass an order of discharge or even an order of acquittal. The facts in that case were entirely different from those before us and therefore this decision also cannot assist the learned Assistant Government Pleader. ( 7 ) UNDER sec. 68 of the Code of Criminal Procedure every summons issued by a Court signed and sealed by the presiding officer of such court is to be served by a police officer. It was therefore the duty of the P. S. I. to make every endeavour to serve the summons issued by the learned Magistrate on an application made for them by the Police Prosecutor. Sec. 70 provides that where the person summoned cannot by the exercise of due diligence be found the summons may be served by leaving one of the duplicates for him with some adult male member of his family. If that cannot be done then sec. 71 provides that the serving officer should affixone of the duplicates of the summons on some conspicuous part of the house or homestead in which the person summoned ordinarily resides; and thereupon the summons shall be deemed to have been duly served. As we have observed the endorsements made by the P. S. I. as also the Head Constable show that the procedure laid down in these sections had not been followed by either of them. The only thing that the P. S. I. can be said to have done on the 9th of July 1960 was to write to the Headconstable Uchhal to inform the two witnesses of the adjourned date and the order passed by the learned Magistrate on the 8th of July 1960. It is quite clear that the P. S. I cannot be said to have used necessary diligence in order to serve the two witnesses. The result was that owing to his failure to carry out the provisions of secs. 67 70 and 71 of the Code of Criminal Procedure the first accused had to remain in jail custody. ( 8 ) SEC. 251-A lays down the procedure to be adopted in warrant cases instituted on police report. The result was that owing to his failure to carry out the provisions of secs. 67 70 and 71 of the Code of Criminal Procedure the first accused had to remain in jail custody. ( 8 ) SEC. 251-A lays down the procedure to be adopted in warrant cases instituted on police report. Under sub-section (7) of that section it is clearly provided that on the date fixed for hearing the learned Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. The words of this sub-section show that the duty of the trial Magistrate is to take such evidence as would be produced before him in support of the prosecution. If for one reason or the other the prosecution fails to produce such evidence before him the only alternative left to the learned Magistrate would be to act under sub-section (11) of that section in cases where a charge has already been framed and to make an order to the effect that he finds the accused not guilty as the prosecution has failed to produce any evidence in support of the charge and then to record an order of acquittal. There being no provision under S. 251 A for an order of discharge in a case where a charge has already been framed the only provision on which he can act would be sub-section (11 ). In our view on the failure of the prosecution to produce the prosecution witnesses the injured woman Bai Kali and her husband and on the failure of the prosecution also to produce any other witnesses though as many as 10 witnesses were cited in the charge-sheet the only thing that the learned Magistrate could do was to pass an order of acquittal under sub-section (11) of sec. 251 A Cr. P. C. It is true that an application for adjournment was made by the Police Prosecutor but the Police Prosecutor as observed by the learned Magistrate was not in a position to adduce any valid reason for such an adjournment. We are fortified in this conclusion by the decision of a Division Bench of the Calcutta High Court in Sadek Mahammad Ahmad Hasan v. Jyotish Chandra Pandit 49 Cr. L. J 12. In that case after a charge has been framed the complainant and his witnesses remained absent on the day fixed for their cross-examination. We are fortified in this conclusion by the decision of a Division Bench of the Calcutta High Court in Sadek Mahammad Ahmad Hasan v. Jyotish Chandra Pandit 49 Cr. L. J 12. In that case after a charge has been framed the complainant and his witnesses remained absent on the day fixed for their cross-examination. The learned trial Magistrate thereupon passed an order discharging the accused under sec. 253 of the Code. It was there held that the learned Magistrate was not competent to pass the order of discharge in view of the fact that it was a warrant case and a charge had already been framed. It was observed that the proper order that the learned Magistrate should have passed was. As the prosecution witnesses are absent and cannot be cross-examined their evidence in examination in chief should be expunged and as there is no evidence in the case the accused is acquitted. In this case though the witnesses for the prosecution had been examined they remained absent on the day when they were to be cross-examined on behalf of the accused. These learned Judges there held that it was a case where an order of acquittal could be properly passed on the ground that there was no evidence in support of the prosecution case and therefore the accused should be acquitted. ( 9 ) THE facts before us also show that owing to the failure of the prosecution to produce their witnesses and owing also to the failure of the prosecution to make full endeavour to serve the summons there was no evidence before the learned Magistrate and therefore the accused was acquitted under sub-section (11) of sec. 251 A Cr. P. C. ( 10 ) IN these circumstances there is no justification to interfere with the order passed by the learned Magistrate. The appeal therefore fails and is dismissed. Appeal dismissed. .