Shri Aswin Kumar Bhowmick has filed this appeal against the order of teamed Magistrate First Class, Sadar, dated 27-12-1963, whereby he acquitted the opposite party from the charge under section 406, I. P. C., in C. R. Case No. 340 of 1959. The relevant facts are as follows : Shri Aswini Kumar Bhowmick, as the Secretary of the School Ishanchandranagar Pargana, filed a complaint under section 406, I. P. C., against the opposite party in the Court of S. D. M., Sadar. The learned S. D. M., after taking cognizance of the case transferred it to the file of Shri B. C. Deb Varma. He examin­ed 4 witnesses and on 7-7-1960 framed a charge under section 406 I. P. C., against the opposite party. Thereafter this Magistrate re­tired from service. On 9-12-1960, the S. D. M., Sadar withdrew the case to his own file and transferred it to the file of Shri W. U. Mullah Magistrate First Class, Sadar. This case re­mained pending in his Court from 24-12-1960 to 27-12-1963. On 27-12-1963; the prosecution witnesses were not present for cross-examination, therefore, the learned Magistrate passed the following order : " The accused absent- No P. Ws. present today. No tadbir from the prosecution. The case has long been pending for the cross-examination of the P. Ws. after charges. The prose­cution had been allowed a good number of ad­journments for producing the P. Ws for cross-examination by the defence. Only the complainant and one witness have been available till to day. Even proceedings under section 485-A Cr. P. C., ordered to be drawn up against the P- Ws. It is no meaning to drag the case in this way for an unlimited time and drag the accused before the Court. So I do hereby expunge the evidence of all the P. Ws. remain­ing to be cross-examined by the defence. The prosecution has examined four witnes­ses in this case. P. Ws. 1 and 2 cross-examined by the defence after charge. The evidence of P. Ws. 3 and 4 is hereby expunged. Discussed the evidence of P. Ws. 1 and 2. The charge under section 406, I. P. C., against the accused not found by the evidence of P. Ws. 1 and 2. P. Ws. 1 and 2 cross-examined by the defence after charge. The evidence of P. Ws. 3 and 4 is hereby expunged. Discussed the evidence of P. Ws. 1 and 2. The charge under section 406, I. P. C., against the accused not found by the evidence of P. Ws. 1 and 2. So the accused cannot be held liable for this offence and he cannot therefore, be found guilty under section 406, I. P- C. So the accused Dwijen Dey is acquitted and set at liberty." (3) Being aggrieved with this order of the learned Magistrate, the appellant has filed this appeal. (4) The learned counsel for the appellant contended that in a warrant case after the charge is framed, it is the duty of the Magis­trate under section 256 to recall the prosecu­tion witnesses so as to enable the accused to cross-examine them. He further pointed out that where the offence is a cognizable one the complainant is not bound to pay the process-fee for summoning the witnesses. Where the complainant requests the Court to summon the witnesses for cross-examination, it is Court's look out to issue coercive process to secure their attendance as permitted by law. In the case of official witnesses, the Court should realise that it would not be possible for the complainant to secure their attendance and should issue summons on them through official chan­nel, for their appearance in Court on the date fixed for their cross-examination. Where the Court does not take steps to enforce the atten­dance of the prosecution witnesses for cross-examination and the witnesses are not present for the date fixed for cross-examination, expung­ing of their evidence from the record on the ground that the complainant was not vigilant in prosecuting the case is not justified. He point­ed out that in the instant case the absence of the witnesses was due to no steps being taken by the trial Court to secure their attendants on the date of hearing, therefore, the acquittal order passed by the learned Magistrate is ille­gal and it must be set aside. (5) The learned counsel for the respondent on the other hand frankly conceded that the learned Magistrate has committed illegality in acquitting the opposite party. On the perusal of the record I too find that the order of learn­ed Magistrate is palpably erroneous. (5) The learned counsel for the respondent on the other hand frankly conceded that the learned Magistrate has committed illegality in acquitting the opposite party. On the perusal of the record I too find that the order of learn­ed Magistrate is palpably erroneous. In a warrant case, after a charge is framed the com­plainant will be out of the picture and it is the duty of the Court to secure such of the witnesses for the prosecution as are required by the accused for further cross-examination. Under such circumstances, no duty is cast upon the complainant to secure the witnesses for the prosecution unless he had undertaken to produce them. The proper procedure to be adopted by a Magistrate under such circumstances is to make an effort to secure the attendance of the witnesses, if so required by issue of coer­cive process. It is illegal to acquit the accused on account of the absence of the complainant as that procedure in such cases is not contem­plated under section 259 of the Criminal Pro­cedure Code or on account of the absence of the prosecution witnesses without taking adequate steps to secure their attendance. In support of my view I may refer the cases reported in AIR 1949 All 428, AIR 1960 Orissa 185 and AIR 1958 Pat 104 . In the instant case, the learned Magistrate did not take any steps to secure the attendance of the prosecution witnesses. When the witnesses were not present he ought to have adjourned the case- In view of the facts of the case, I am constrained to remark that the acquittal of the respondent is illegal and must be set aside. (6) I, therefore, allow this appeal and set aside the order of acquittal dated 27-12-1963 and remand the case for re-trial from the stage of the charge, Appeal allowed.