JUDGMENT K.N. Srivastava, J. - These are four connected appeals in which a common question of law and fact arises for determination. In Government Appeal No. 746 of 1966, Banshi and Bhangi were caught while they were trying to smuggle rice from Deoria District in Uttar Pradesh to District Champaran in Bihar. The bags of rice were seized by a Sub-Inspector and a case under Section 7 of the Essential Supplies Act was registered against the aforesaid respondents. 2. In Government Appeal No. 747 of 1966, Mahanath and Vijai Singh were found taking 11 bags of rice from Deoria District in Uttar Pradesh to Champaran in Bihar. The Sub-Inspector seized these bags of rice. 3. In Government Appeal No. 748 of 1966, Ambika and Bhangi were taking four bags of rice from District Deoria in Uttar Pradesh to District Champaran in Bihar. The Sub-Inspector of Police seized the bags of rice and challaned these respondents under Section 7 of the Essential Supplies Act. 4. In Government Appeal No. 749 of 1966, Suraj Nath Singh and Bhangi were found taking 5 bags of rice from District Deoria in Uttar Pradesh to District Champaran, Bihar State. The Sub-Inspector seized the aforesaid bags of rice and challenged the respondents under Section 7 of the Essential Supplies Act. 5. All these seizures were made at village Khirikiya on June 2, 1965 in the evening. All these four cases were sent to Sri Desh Raj Singh, S.D.M., Padrauna at Kasia for trial. The charge sheet was submitted in all the four cases before the Magistrate on October 6, 1965. Summonses were issued to the witnesses. On the date of hearing, summonses had not been received back nor the witnesses were present in the court. The learned Magistrate acquitted the respondents and hence the State has come in appeal in all the aforesaid four cases. The same order was passed in all the four cases which runs as below: "I find that the charge sheet was submitted on October 6, 1965. The summonses were also issued on the application of the APP to the police witnesses. They have not even been returned after service by the same police station which has submitted the charge sheet. The same order was passed in all the four cases which runs as below: "I find that the charge sheet was submitted on October 6, 1965. The summonses were also issued on the application of the APP to the police witnesses. They have not even been returned after service by the same police station which has submitted the charge sheet. No doubt after the charge has been framed, it is the court's duty to procure the attendance of the witnesses if the SO is unable to procure the attendance of the witnesses. But sub-section (7) of Section 251-A clearly reads that the court can refuse to summon the witnesses for reasons to be recorded in writing. In the present case, even the summonses had been issued on the application of the prosecution. The flagrant way in which the prosecution has sat over them without any reason clearly shows that they are not discharging their duties as prosecution. They cannot be allowed, therefore, to use the court as their tool or harass the party like that. It will be a very wrong interpretation of the procedure, if it were taken to be that once the prosecution has made an application, the court should go out of its way to examine his witnesses. The prosecution therefore, cannot be allowed any further opportunity to lead evidence. The accused are, therefore, acquitted for want of prosecution evidence." The learned State counsel contended that the order passed by the trial court clearly indicated that the trial court did not properly appreciate the import of Section 251-A Cr.PC and the order of acquittal was against law. Section 251-A, Cr.PC reads as below: "251-A. Procedure to be adopted in cases instituted on police report: (1) When, in any case, instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, such Magistrate shall satisfy himself that the documents referred to in Section 173 have been furnished to the accused, and if he finds that the accused has not been furnished with such documents or any of them, he shall cause them to be so furnished. (2) If, upon consideration of all the documents referred to in Section 173 and making such examination, if any, of the accused, as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him. (3) If, upon such documents being considered, such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground or presuming that the accused has committed an offence triable under this chapter, which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (4) The charge shall then be read and explained to the accused and he shall be asked whether he is guilty or claims to be tried. (5) If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon. (6) If the accused refuses to plead, or does not plead, or claims to be tried, the Magistrate shall fix a date for the examination of witnesses. (7) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution: Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined, or recall any witness for further cross-examination. (8) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record. (9) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination, or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Such ground shall be recorded by him in writing: Provided that, when the accused has cross-examined or had opportunity of cross-examining any witness after the charge is framed, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the purposes of justice. (10) The Magistrate may, before summoning any witness on such application under sub-section (9), require that his reasonable expenses incurred in attending for the purpose of the trial be deposited in Court. (11) If, in any case under this section in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal. (12) Where in any case under this section, the Magistrate does not proceed in accordance with the provisions of Section 349 or Section 562, he shall, if he finds the accused guilty, pass sentence upon him according to law. (13) In a case where a previous conviction is charged under the provisions of Section 221, sub-section (7), and the accused does not admit that he has been previously convicted as alleged in the charge, the Magistrate, may, after he has convicted the said accused under sub-section (5) or subsection (12), take evidence in respect of the alleged previous conviction, and shall record a finding thereon." 6. This section was introduced in the Cr.P.C. by Act 26 of 1955. It lays down a complete procedure exclusively applicable to the trial of warrant cases instituted on police report. In trial of warrant cases instituted on police report, the Magistrate shall furnish copies of relevant documents to the accused when the accused appears and is brought before him. If after furnishing the documents mentioned above and after giving opportunity to prosecution and to accused of being heard, the Magistrate finds that the charge is groundless, the accused shall be discharged t but if it is found that there is prima facie evidence against the accused, a charge shall be framed. The accused shall then be asked whether he pleads guilty or wants to be tried. When the accused pleads guilty he shall be convicted and sentenced and if he does not plead guilty and claims to be tried, a date shall then be fixed for examination of the witnesses. On the date so fixed, the Magistrate shall take all the evidence produced in support of the prosecution. 7. When the accused pleads guilty he shall be convicted and sentenced and if he does not plead guilty and claims to be tried, a date shall then be fixed for examination of the witnesses. On the date so fixed, the Magistrate shall take all the evidence produced in support of the prosecution. 7. In this amended section, there was no provision for summoning the witnesses at the instance of the prosecution. Realising this difficulty, a proviso was added to sub-section (6) by Criminal Laws (U.P. Amendment) Act, 1961. By this amendment the fullstop after the word `witnesses' was changed into a semicolon and the following was added: "and shall summon the witnesses, documents or things, specified in any application, made on behalf of the prosecution before the said date, for summoning the same, unless, for reasons to be recorded, he deems it unnecessary to summon all or any of them." 8. By the addition of this amendment, the prosecuting counsel was given a right to summon witnesses and documents in proof of the prosecution case. No doubt, the trial court was given a right to refuse the prayer if it felt that it was unnecessary to summon the documents or the witnesses but then the Magistrate had to record his reason for doing so. 9. In the instant case, on the application of the prosecution, summonses were issued to the witnesses fixing January 4, 1966 as a date for hearing. This was the first date of hearing in this case. The summonses had not been returned after service. This might have been due to the negligence of the policeman to whom the summonses were handed over for service or there might be some other reason as well. For the negligence in performing his duty, the policeman concerned should have been taken to task. The trial court could start proceedings himself or could write to higher police authorities for taking action against an erring policeman. For default of one erring policeman, the prosecution should not have been punished by acquitting the accused. The learned Magistrate observed that `They cannot be allowed, therefore, to use the court as their toll or harass the party like that'. Certainly there was no question of harassment as it was first date for hearing in these cases. I failed to understand that what was the `flagrant way' in which the prosecution `sat over without any reason'. The learned Magistrate observed that `They cannot be allowed, therefore, to use the court as their toll or harass the party like that'. Certainly there was no question of harassment as it was first date for hearing in these cases. I failed to understand that what was the `flagrant way' in which the prosecution `sat over without any reason'. There may be a number of reasons for the delay in the service of the summons. They might have been sent from the office of the Magistrate very late. The summonses might have been delayed in the office of the Superintendent of Police. They could even have been delayed at the Thana. The delay might be due to the negligence and carelessness of that constable to whom the summonses were issued for service. Without proving as to what was the real cause of delay, the Magistrate was not justified in passing the impugned order. 10. The learned counsel for the respondents relied on the ruling Prem Narain Gupta and others v. Shiva Prasad Agarwal, 1961 ALJ 219. In this case, the opposite party was examined on June 1, 1959 and the case was adjourned as his examination remained incomplete. On the subsequent day, the opposite party was ill and, therefore, the case was adjourned to June 29, 1959. That day also, the statement of the opposite party remained incomplete and the case was adjourned to July 20, 1959. On July 20, 1959, the opposite party and his witnesses were absent and an application was made by his counsel that the opposite party was ill. This application was supported by a medical certificate. This application was rejected and the complaint was dismissed. The applicant was discharged. In revision this order was set aside by the learned Sessions Judge. The applicant then came in revision to this court. It was held that it was not correct to say that Section 253 (1) could be applied only after all the evidence which the complainant intended to produce was taken. It only meant that all the evidence which might be produced was taken. 11. This ruling does not apply to the facts of this case. The instant case was filed on a police report and not on a complaint, and, therefore, the provisions of Section 251-A applied to this case as this section was enacted exclusively for trials of cases on police report. 12. 11. This ruling does not apply to the facts of this case. The instant case was filed on a police report and not on a complaint, and, therefore, the provisions of Section 251-A applied to this case as this section was enacted exclusively for trials of cases on police report. 12. The other case which the learned counsel for the respondents cited is State of U.P. v. Parsadi, 1965 AWR 686 . In this case, the respondent was challaned under Section 25 of the Indian Arms Act, His statement was recorded on May 14, 1963 and May 20, 1963 was fixed for the statement of the prosecution witnesses. The summonses on the three prosecution witnesses were served but they were absent. The summonses of other witnesses had not been received. The learned Magistrate then discharged the respondent. Being dissatisfied, the Government came in appeal to this court. The order of discharge was set aside. In this case, it was observed as below: "Apart from the legal angle, on grounds of propriety also the order cannot be defended. It is clear from what has been said above that May 20, 1963 was the very first date fixed for the recording of the prosecution evidence and further that there was no information as to whether the summons of the remaining prosecution witnesses had been served on them by that time or not? The learned Magistrate could not, therefore, pass the order which he did, until he had first made sure that the absence of those witnesses on May 20, 1963 was due to reasons other than the non-service of the summons on them. The learned Magistrate, therefore, exhibited undue haste in passing the order of discharge, and the least that he might have done was to have waited till the end of the day, or, at any rate, till he got definite information that the absence of the said witnesses was due to some cause other than the non-service of the summons on them." 13. The other case which was cited in this connection is State v. Laxman, 1961 ALJ 342. The facts of this case are distinguishable from the facts of the instant case. In Laxman's case, the case had been listed for hearing on a number of dates. On the last date on which the case was listed for hearing, no witness appeared in the trial court. The facts of this case are distinguishable from the facts of the instant case. In Laxman's case, the case had been listed for hearing on a number of dates. On the last date on which the case was listed for hearing, no witness appeared in the trial court. The APP was also absent. The learned Magistrate contacted the APP and also the Public Prosecutor but they did not take any steps. It was then that an order was passed. In these circumstances, the order passed by the learned Magistrate was upheld. In the instant case, no attempt whatsoever was made by the learned Magistrate to enquire from the APP or the Public Prosecutor as to what was the reason of the summonses not being returned. The learned Magistrate has misconstrued the provisions of Section 251-A (7) Cr.P.C. This section lays down that the Magistrate shall take all evidence which may be produced in support of the prosecution. It does not empower the Magistrate to acquit an accused in manner in which he did. After the charge is framed, the Magistrate can only acquit an accused person as laid down under sub-section (11) of Section 251-A, Cr.P.C., but before doing so, he has to comply with other provisions preceding sub-section (11). In the instant case the summones were issued on the application of the APP. The learned Magistrate being satisfied that the statements of these witnesses were necessary for the case, passed the order of summoning the witnesses. After dong so, he could not turn round and say that the summoning of these witnesses was not necessary for the case. 14. If the witnesses had failed to appear, which was not the case here, the Magistrate should have issued other processes to secure the presence of the witnesses on the next date of hearing. The prosecution had done all that it had to do under the law. It was the duty of the learned Magistrate to see that the witnesses summoned by the prosecution attended the court to give their statements. The prosecution had done all that it had to do under the law. It was the duty of the learned Magistrate to see that the witnesses summoned by the prosecution attended the court to give their statements. The word `shall' before the words `summon the witnesses' under sub-section (6) to Section 251-A Cr.P. C., as amended by this State made it obligatory on the Magistrate to secure the presence of the witnesses by using all powers given to him under the Cr.P.C. Without exhausting all the procedure in that regard, the Magistrate was not justified in recording the acquittal of the respondents. A plain reading of the amendment to sub-section (6), as amended by the Criminal Laws (U.P. Amendment) Act, 1961, in my opinion, leaves no option to the Magistrate to acquit an accused in absence of a witness if an application to summon the witness has been made by the prosecution and if the same has been allowed by the Magistrate. After allowing such an application, the Magistrate cannot subsequently say that the summoning of the aforesaid witness was not necessary for the case. Section 251-A (6) laid down that the Magistrate shall fix a date for examination of the witnesses. This indicated that the Magistrate was to examine the witnesses brought to the court by the prosecution, the insertion of the amendment to sub-section (6) by this State enjoined upon the Magistrate a greater duty than the one which was laid down in the original Section 251-A (2) of the Cr.P.C. 15. I feel that in a hot haste, the Magistrate passed the order of acquittal without realising that it was the first date of hearing of the case and without is ascertaining the real cause, as to why the summonses had not been returned to the court and also without ascertaining as to who was responsible for the same. In view of the above discussion, the orders passed by the learned Magistrate in the aforesaid four cases cannot be maintained. 16. It was next argued that the case was of a petty nature and the respondents have suffered considerably and, therefore, it was not a fit case where retrial should be ordered. In this connection, reliance was placed on the Supreme Court case Ulkha Kolhe v. State of Maharashtra, A.I.R. 1963 SC 1531. 16. It was next argued that the case was of a petty nature and the respondents have suffered considerably and, therefore, it was not a fit case where retrial should be ordered. In this connection, reliance was placed on the Supreme Court case Ulkha Kolhe v. State of Maharashtra, A.I.R. 1963 SC 1531. Shah, J., speaking for the Bench observed as below: "An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities ; or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge and in the interest of justice the appellate court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again." 17. The other case which has been referred to by the learned counsel for the respondents is Jagannath v. State, AIR 1956 Allahabad 655. In this latter case, the retrial was not held advisable as five years had elapsed and there was likelihood of difficulties in producing the prosecution witnesses when the co-accused who was the principal offender had already been convicted. In the instant case, the offence was committed about three years and few months back but the delay has not been caused on account of any latches on behalf of the State. The offence was committed in all these four cases on June 2, 1965 and charge-sheets were submitted in the court of the Magistrate on October 6, 1965. The impugned order of acquittal was passed on January 4, 1966. The appeal was filed on July 14, 1966. The major portion of the time has been spent in appeal. There does not appear to be any difficulty in procuring the presence of the witnesses in this case. In view of this, Jagannath's case does not apply to the facts of the present case. 18. The appeal was filed on July 14, 1966. The major portion of the time has been spent in appeal. There does not appear to be any difficulty in procuring the presence of the witnesses in this case. In view of this, Jagannath's case does not apply to the facts of the present case. 18. In the Supreme Court case, it was held that a retrial should be ordered where in substance there has been no trial or the prosecutor or the accused, for reasons beyond their control, were deprived of adducing evidence. In the instant case, the Magistrate acted illegally. The prosecution was deprived of its right to adduce evidence without any fault. The Magistrate did not adopt the correct procedure in disposing of these cases. I have not the least doubt that in substance there has been no trial of the respondents. I am, therefore, of the opinion that the above argument too has no force in it. For the above reasons, the appeals succeed. 19. Government Appeals Nos. 746 to 749 of 1966 are allowed. The order of acquittal passed by the learned trial court is set aside in all the four cases. Let these cases be sent to the court below for trial according to law.