JUDGMENT D.D. Seth, J. - This reference has been made by the learned Additional District Magistrate (J) , Jalaun at Orai. 2. The facts of the case, as mentioned in the referring order, are that the opposite party Mahendra Singh was prosecuted by the Assistant Public prosecutor, who submitted a charge-sheet against him on 6th of March 1967 for an offence under Section 379, I. P. C. The charge-sheet was submitted to the learned Judicial Officer, who directed the case to be fixed for 5th and 6th April, 1967 and further directed that prosecution witnesses Nos. 1 to 9 be produced on 5th April and the remaining witnesses could be produced on 6th April. Accordingly summons were issued for all the witnesses for 5th and 6th April 1967. On 5th April, 1967 two of the prosecution witnesses, namely Mohammad Unis and Pyare Lal appeared before the learned Magistrate and their statements were recorded. Thereafter the Assistant Public Prosecutor filed an application before the learned Magistrate stating therein that one of the prosecution witness Nand Kishore was in the court compound and that he had met the Assistant Public Prosecutor in the office of the Public Prosecutor at 10.30 a.m. that morning but when the case was taken up by the learned Magistrate at 12.15 p.m. he did not appear in court. The learned Assistant Public prosecutor requested the learned Magistrate that summones may be issued for the presence of Nand Kishore on the next date or the court might wait for some hours for him to appear before the court. The learned Judicial Officer rejected the application of the Assistant Public Prosecutor after observing that Nand Kishore knew fully well that the case was fixed for hearing on 5th April, 1967 and if he went away the case could not be adjourned for him nor could he be summoned again. The request made on behalf of the State for taking up the case after sometime for his statement was also rejected. The request made on behalf of the State for taking up the case after sometime for his statement was also rejected. On 6th April 1967, which was the next date fixed, a report was submitted by the police authorities to the learned Magistrate by the Assistant Public Prosecutor and it was mentioned in the report that on 5th April, 1967 Nand Kishore had come to court and had met the Assistant Public Prosecutor and that on 6th April, 1967 personal bonds were sent for execution by Nand Kishore through a constable who reported back that Nand Kishore had refused to execute the personal bond. The Assistant Public Prosecutor, therefore, requested the learned Magistrate to issue a warrant for the arrest of Nand Kishore in order to produce his attendance as a witness in the case and to summon the other witnesses. The learned Judicial Officer on the application filed by the Assistant Public Prosecutor observed that Chandra Shekher, Anant Ram and Nand Kishore were local witnesses and that summonses had already been issued to them and that the police could bring these witnesses. It was also observed that Nand Kishore had actually come to court on 5th April, 1967 and the learned Magistrate, therefore ordered that these witnesses could not he summoned again. The learned Magistrate further observed that the formal witnesses of the police had also not appeared and that the court could not wait for them. The learned Magistrate further ordered that the statements of the accused would be recorded under Section 342, Criminal Procedure Code. Thereafter the learned Magistrate actually recorded the Statements of the accused under Section 342, Criminal Procedure Code; and fixed a date for the production of the evidence for the defence. The next date fixed was 24th April, 1967 when an application was made stating that the accused was ill and that another date be fixed. On that date the Assistant Public Prosecutor also filed a report stating that Nand Kishore, Chandra Shekbar and the Sub-Inspector, who had investigated into the case, had come to rout and their statements should be recorded under Section 540, Criminal Procedure Code. The learned Magistrate by his order dated 24th April, 1967 rejected the application filed on behalf of the state for examining Nand Kishore, Chandra Shekhar and the Sub-Inspector under Section 540, Criminal Procedure Code. The learned Magistrate by his order dated 24th April, 1967 rejected the application filed on behalf of the state for examining Nand Kishore, Chandra Shekhar and the Sub-Inspector under Section 540, Criminal Procedure Code. In the order dated 24th April, 1967 the learned Magistrate, after giving the facts of the case, observed as follows : "I have heard the learned counsel for both the parties at length and have perused the relevant orders in the file of the case. It appears that P. Ws. intentionally absented and did not turn on the dates fixed. They cannot be examined under Section 540, Cr. P. C. If I do this I shall be filling the lacuna of the prosecution case. Moreover Section 540, Cr. P. C. is not meant to examine the witnesses of the charge-sheet who could have been produced on the date fixed for their statements. I do not stand in need of their statements, for arriving at the correct conclusion of the case. This application is therefore rejected." 3. Against this order of the learned Magistrate the State preferred a revision out of which this reference has arisen. 4. I have heard Shri G. P. Dikshit, the learned brief holder for the state and Shri V. K. Burman, learned counsel appearing for Mahendra Singh, who has opposed the reference. 5. Shri G. P. Dikshit submitted that in order to arrive at correct decision of the case it was the duty of the Magistrate to have issued coercive process against Nand Kishore in order to secure his attendance in court as one of the prosecution witnesses. The learned counsel further submitted that in a warrant case once a Magistrate takes cognizance it becomes his duty to go to the root of the case and to do justice in the matter and, therefore, it was all the more necessary for the learned Magistrate to have issued a warrant against Nand Kishore in order to secure his attendance in court and to re-summon the other witnesses. According to Shri G. P. Dikshi: the power of the Magistrate for securing the attendance of a witness is very wide and the court may at any stage of the proceeding summon any witness in order to determine the truth or otherwise of the facts of the case. 6. According to Shri G. P. Dikshi: the power of the Magistrate for securing the attendance of a witness is very wide and the court may at any stage of the proceeding summon any witness in order to determine the truth or otherwise of the facts of the case. 6. Shri V. K. Burman, on the other hand) submitted that under Section 540, Criminal Procedure Code, a Magistrate has the discretion in summoning material witnesses or in examining persons present in court. He also submitted that since summons had already been issued to the prosecution witnesses it was not necessary for the learned Magistrate to issue summons second time or to issue coercive process against Nand Kishore in order to secure his attendence in court. Shri V. K. Burman also submitted that it was not the duty of the learned Magistrate to exercise his powers under Section 540, Criminal Procedure Code, at the request of the prosecution and that he could exercise his discretion under Section 540, Criminal Procedure Code, only if he was of the opinion that the statements of the prosecution witnesses were necessary for the correct decision of the case. 7. The referring court referred to sub-sec. (6) of Section 251-A, Criminal Procedure Code, which reads as follows : "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 and shall summon the witnesses, documents or things specified in an application, made on behalf of the prosecution before the said date, for summon the same unless for reasons to be recorded he deems it necessary to summon all or any of them." 8. According to the referring court this special provision contained in sub-sec. (6) of Section 251-A, Criminal Procedure Code. had been ignored by the learned Magistrate and hence the order passed by the learned Magistrate deserves to be set aside. As already stated above, in the instant case summones were issued to all the prosecution witnesses by the learned Magistrate once and, therefore, the requirements of sub-sec. (6) of Section 251-A, Criminal Procedure Code, had been satisfied. The learned Magistrate in his impugned order has recorded a finding that it appeared to him that the prosecution witnesses intentionally absented and did not turn up on the dates fixed. (6) of Section 251-A, Criminal Procedure Code, had been satisfied. The learned Magistrate in his impugned order has recorded a finding that it appeared to him that the prosecution witnesses intentionally absented and did not turn up on the dates fixed. He also observed that he did not stand in need of the statements of the remaining prosecution witnesses in arriving at the correct conclusion of the case. 9. Section 540, Criminal Procedure Code, reads thus : "Any Court may, at any stage of any inquiry, trial or other proceeding 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." 10. The first part of Section 540, Criminal Procedure Code, gives a clear discretion to the Magistrate in summoning a witness.-The second part is mandatory and casts a duty upon the Magistrate to summon and examine or recall and re-examine any witness if his evidence appears to it essential to the just decision of the case. In the instant case the learned Magistrate recorded a finding that after the examination of the two of the prosecution witnesses, namely, Mohammad Unis and Pyare Lal, he did not stand in need of the statements of the prosecution witnesses in arriving at the correct conclusion of the case. He also recorded specific finding that the prosecution witnesses intentionally absented themselves and did not turn up on the date fixed. Under these circumstances there was no duty cast upon the learned Magistrate to have issued a warrant against Nand Kishore and to have summoned other prosecution witnesses at the request of the prosecution. It was held by a Division Bench of the Hyderabad High Court in Satyanarayan v. Hyderabad State, A.I.R. 1955 Hyderabad 145 as follows : "Nor the discretion given to the Magistrate under Section 540 should be exercised in the middle of the prosecution evidence." 11. In the instant case, as already stated IG above, two of the prosecution witnesses had already been examined by the learned Magistrate. In the instant case, as already stated IG above, two of the prosecution witnesses had already been examined by the learned Magistrate. Therefore, it was not necessary for the learned Magistrate to have exercised his discretion under Section 540, Criminal Procedure Code, to issue a warrant against Nand Kishore or to issue summonses for the second time against prosecution witnesses in the middle of the prosecution evidence and specially when the learned Magistrate was satisfied that he could come to a correct conclusion of the case without the statements of the remaining prosecution witnesses. 12. For the reasons mentioned above and ;tiler hearing the learned counsel for the parties I reject this reference and uphold the order of the learned Magistrate passed on 24th April-1967.