ORDER M.N. Shukla, J. - There is a very short point involved in this criminal reference. 2. The facts are that the opposite party namely Onkar was charged by the learned Magistrate u/s 25 of the Indian Arms Act on 14-8-1970. He then had fixed the case for 4-9-1970 for examination of the prosecution witnesses. On that date only one witness i.e. the Sub-Inspector Sri D.D. Dikshit was present and was examined and the case was adjourned for 18-9-1970 for recording the evidence of the other witnesses. On the date fixed the learned Magistrate had gone on tour and so the case was adjourned for 16-10-1970 for prosecution evidence. On 16-10-1970 no prosecution witness was present and so the A.P.P. submitted an application to the court praying that the prosecution witnesses be summoned through court since the police of thana Nawabganj appeared to be reluctant to produce the witnesses. Thereupon the learned Magistrate did adjourn the case for 23-10-1970 for production of the entire prosecution evidence but rejected the prayer for issue of summons to the witnesses saying that "if the prosecution is reluctant to examine the witnesses the question of issue of summons for execution does not arise." On 23-10-1970 no prosecution witness appeared and the A.P.P. applied for adjournment of the case for examining the prosecution witnesses. This application was rejected by the learned magistrate and the order sheet showed that the case was fixed for examination of the accused u/s 342 Code of Criminal Procedure and for defence for 6-11 -1970. It is against this order dated 23-10-1970 that the prosecution has come up in revision and reference has been made by the learned Additional District Magistrate, Bareilly to this Court recommending that the impugned order be quashed. 3. It may be stated at the very outset that though the revision is directed against the order dated 23-10-1970 it was merely a consequential order and the real grievance arose on account of the order passed on 16-10-1970. If the request made on behalf of the proseoution on 16-10-1970 had been allowed by the learned Magistrate, either it would not have been necessary to seek an adjournment on 23-10-1970 cr the adjournment would have been in all probability allowed. If the request made on behalf of the proseoution on 16-10-1970 had been allowed by the learned Magistrate, either it would not have been necessary to seek an adjournment on 23-10-1970 cr the adjournment would have been in all probability allowed. Therefore, if the previous order was contrary to law and had culminated in a refusal of adjournment on 23-10-1970 the powers of this Court are sufficiently wide to remedy such illegality as has vitiated the proceedings. 4. It would be evident from the order dated 16-10-1970 a part of which has been quoted earlier that in the view of the Magistrate the question of issue of summons to secure attendance of witnesses did not arise because the prosecution was reluctant to examine them. I cannot refrain from remarking that this view of law expressed by the learned Magistrate was palpably erroneous and in fact irrelevant. It is only when one of the parties for reasons best known to itself, is averse to examining the necessary and proper witnesses in a case that it becomes necessary to invoke the powers of the court to issue summons to secure the presence of the witnesses. Therefore, the reason stated by the learned Magistrate for refusing to summon the witnesses is manifestly unintelligible and perverse. In a case like the one before me where the police with some ulterior motive was reluctant to produce the material witnesses in a case, the public prosecutor was conscientiously discharging his duty when he sought the protection of the court in securing the presence of the witnesses in order that justice might be done. To refuse to exercise the court's power in a situation like this is to throttle justice at its very source. It is significant that the learned Magistrate did not make any observation that the application was vexatious or that the witnesses were irrelevant and not material in the case or that there was any other reason which might be sufficient to condemn the endeavour of the publio prosecutor to secure their attendance by issue of summons. 5. It appears to me that the learned Magistrate had some misgivings about the correct proposition of law with regard to the summonings of witnesses at the request of the prosecution. It is true that the legal position has undergone a change in this regard on account of legislative amendments. 5. It appears to me that the learned Magistrate had some misgivings about the correct proposition of law with regard to the summonings of witnesses at the request of the prosecution. It is true that the legal position has undergone a change in this regard on account of legislative amendments. Prior to the amendment of the Code of Criminal Procedure by the Code of Criminal Procedure (Amendment Act) 1955 there was a uniform procedure laid down in Ch. XXI for the trial of warrant cases irrespective of the consideration whether a case was instituted on police report or otherwise, as for example, on a private complaint. u/s 252 of the Code as it stood before the amendment the prosecution had a right to ask for summoning of persons likely to be acquainted with the facts of the case and a duty was cast on the court to summon such persons to give evidence before it. The relevant part of Section 252(2) ran as follows: 252... ... ... (2) 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. Section 34 of the Amending Act 26 of 1955, however, substituted a new Section 251-A for the old Section 251. Now the procedure to be adopted in cases instituted on police report in warrant cases is regulated by Section 251-A Sub-sections (6) and (7) thereof runs as under: 251-A... ... ... (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. It would be clear from a look at the above sub-sections that the Magistrate has only to fix a date for the examination of the witnesses and on the date fixed take all such evidence as may be produced in support of the prosecution. Evidently no duty is cast on the court to issue summons for the examination of any witnesses if they are not present before the court for examination. Evidently no duty is cast on the court to issue summons for the examination of any witnesses if they are not present before the court for examination. Likewise, no right is conferred on the prosecution to ask the court to issue summons for the examination of witnesses. The right which was formerly enjoyed by the prosecution under the unamended Code has after the amendment ceased to exist. It is noteworthy that even under the present code such right is conferred on an accused person. Under Sub-section (9) of Section 251-A Code of Criminal Procedure, 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, etc., the Magistrate shall issue such process unless he considers that such application was made for the purpose of vexation or delay or for defeating the ends of justice. The grounds for rejecting such prayer shall be recorded by him in writing. The Legislature in its wisdom did not consider it necessary to confer similar right on the prosecution and this may be regarded as a lacuna from the point of view of the prosecution. u/s 251-A of the Code, therefore, the prosecution could not claim as a matter of right to have summons issued for securing the attendance of certain prosecution witnesses who were being suppressed. The learned Counsel in support of the reference referred to a number of rulings in which the view had been expressed that a Magistrate would not be justified in proceeding to record an acquittal only on account of the non-attendance of the witnesses. With great respect I am unable to subscribe to that view, which does not seem to be warranted by the provisions of Section 251-A of the Code of Criminal Procedure. 6. But the present case, however, must be decided on a different consideration altogether. It appears that the subsequent amendment in Section 251-A of the Code was not brought to the notice of the court below. 6. But the present case, however, must be decided on a different consideration altogether. It appears that the subsequent amendment in Section 251-A of the Code was not brought to the notice of the court below. The Deputy Government Advocate appearing for the State referred me to the amendment made in Sub-section (6) of Section 251-A Code of Criminal Procedure by Section 3 of the Criminal Laws (U.P. Amendment) Act, 1961 (U.P. Act No. XXXI of 1961) Section 3 reads as follows: (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 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 necessary to summon all or any of them. It is manifest that the lacuna in Section 251-A to which I have already adverted has been remedied by the subsequent amendment. It follows from the provisions of Section 251-A(6) as now amended that the Magistrate was bound to summon the witnesses asked for by the Public Prosecutor unless reasons for refusing the request were recorded by him. I have already observed that no such reasons have been recorded by the Magistrate and the reason embodied in his order is on the face of it irrelevant. In my opinion in the circumstances of this case the refusal of the Magistrate to examine the witnesses who were being withheld by the police of the thana Nawabganj has occasioned a miscarriage of justice and the amendment clinches the case in favour of the prosecution. 7. I, therefore, accept this reference and in the exercise of my revisional jurisdiction sec aside the orders dated 6-10--1970 and 23-10-1970 passed by the learned Magistrate. The case shall go back to the Magistrate concerned with the direction to proceed from the stage when the application was made for summoning of the witnesses.