JUDGMENT Yashoda Nandan, J. - This is a reference made by the learned Sessions Judge, Meerut recommending that the order dated 3rd November, 1971 passed by Sri K.N. Sinha, a learned first class Munsif Magistrate be set aside. 2. The material facts giving rise to this reference are that the police submitted a charge sheet against seven persons for offences punishable under sections 147, 323/149 and 437/149 of the Indian Penal Code, in the court of a learned 1st class Munsif Magistrate. The statement of the accused was recorded by the learned Magistrate and they pleaded not guilty and on 19th June, 1969 the learned Munsif-Magistrate framed charges against them. It was a warrant case on the basis of a police report and consequently procedure prescribed by Section 251-A of Chapter XXI of the Code of Criminal Procedure (hereinafter referred to as the Code) was to be followed. On the 19th of June, 1969 the learned trial Magistrate fixed 27th June, 1969 for the evidence of the prosecution witnesses under section 251-A (7) of the Code. On 27th June, 1969 an application for adjournment was made by the Assistant Public Prosecutor because the prosecution witnesses had not turned up. In that application there was also a prayer that summons against the P.Ws. may be issued. The learned Munsif Magistrate passed an order allowing the prayer for adjournment and fixed 23rd July, 1969 for examination of the prosecution witnesses. On the 23rd of July, 1969 the presiding officer of the court was on leave and consequently the case could nit he taken up and 20th August, 1969 was fixed for examination of the prosecution witnesses. On the 20th of August, 1969 an application was made by the Assistant Public Prosecutor for adjournment of the case to some other date on the ground that though the prosecution witnesses had been summoned, they were absent because they had gone out somewhere else, The learned Magistrate passed an order that he was giving a last opportunity for production of evidence. He fixed Ist October, 1969 for that purpose. 1st October, 1969 had wrongly been fixed as the date in the case because it was a holiday. The Order-sheet shows that on the 3rd of October, 1969 the learned Magistrate passed an order fixing. 19th November, 1969 as the date for evidence in the case. He fixed Ist October, 1969 for that purpose. 1st October, 1969 had wrongly been fixed as the date in the case because it was a holiday. The Order-sheet shows that on the 3rd of October, 1969 the learned Magistrate passed an order fixing. 19th November, 1969 as the date for evidence in the case. On the 19th November, 1969 the court remained; engaged in other work and consequently for lack of time the case giving rise to this reference could not be taken up, and the next date was fixed on 28th January, 1970. The record discloses that by the 19th of November, 1969, five prosecution witnesses had been served with summons for their presence in the court. On 28th June, 1970 the court could not be held on account of the death of some practising lawyer. The case was ordered to be put up on 11th March, 1970. On 11th March, 1970 the case was adjourned on the basis of an application being made to the effect that the Assistant Public Prosecutor who was to conduct the case was on leave. The cake was ordered to stand adjourned upto 19th May 1970. On the 19th May,, 1970 an application was made on behalf of some of the accused for adjournment on the ground that they had to participate in some religious congregation. The application was allowed and the learned Magistrate fixed 10th June, 1970 for production of prosecution witnesses. On the 10th June, 1970 an application was made on behalf of the State for adjournment of the case on the ground that the prosecution witnesses were absent and the Assistant Public Prosecutor who was to conduct the ease on behalf of the State was also on leave. The application was allowed and the case was directed to be put up on 24th June, 1970. On 24th June, 1970 the case was again adjourned to 22nd July, 1970. On 22nd July, 1970 the Presiding Officer of the Court was on leave and consequently the case was adjourned to 26th August, 1970. On that date when the case was taken up the testimony of P.W. 1 Gopi was recorded in part. The case was thereafter ordered to be put up on 21st October, 1970 for remaining prosecution evidence. On 22nd July, 1970 the Presiding Officer of the Court was on leave and consequently the case was adjourned to 26th August, 1970. On that date when the case was taken up the testimony of P.W. 1 Gopi was recorded in part. The case was thereafter ordered to be put up on 21st October, 1970 for remaining prosecution evidence. On 4th September, 1970 the case was transferred from the court of the City Munsif Magistrate, Meerut where it was proceeding to the court of Sri R. C. Jain, another learned Munsif Magistrate of the District. On 21st October, 1970, cross-examination of P.W. 1 concluded and it was ordered that the case be put up for further evidence on 24th November, 1970. On 24th November, 1970 the Presiding Officer of the Court was on leave and 16th December, 1970 was fixed as the date in the case. On the 16th December, 1970 the case could not be taken up because the court remained busy in other cases and there was no time left. The case was adjourned to 25th January, 1971. On 25th January, 1971 because of the death of some lawyer, it appears that the court was closed and the case was adjourned to 22nd March, 1971. On 22nd March, 1971 the case was adjourned to 29th May, 1971 at the instance of the counsel for some of the accused. On 29th May, 1971 the Presiding Officer was again on leave and consequently the case was adjourned to 1st July, 1971. On 1st of July, 1971 the Presiding Officer was on casual leave and the case could not be taken up. It was adjourned for the 11th September, 1971. On 11th September, 1971 an application was made by Public Prosecutor wherein it was alleged that on the last date evidence could not be adduced as the court was closed and P.Ws. could also not be summoned for 11th Sept. 1971. Only one P.W. Gopi Chand had been examined so far: It was therefore prayed that P.Ws. 2 to 13 whose names were mentioned in the charge sheet may kindly be summoned in the interest of justice and for the just decision of the case and further that the ease may be adjourned to the next date for completion of prosecution evidence." The learned Magistrate passed an order on that application as follows "The ground is untenable. 2 to 13 whose names were mentioned in the charge sheet may kindly be summoned in the interest of justice and for the just decision of the case and further that the ease may be adjourned to the next date for completion of prosecution evidence." The learned Magistrate passed an order on that application as follows "The ground is untenable. It is the duty of the prosecution to request the court for summoning the witnesses in advance of the date. The case is, however, adjourned in t1.;e interest of justice subject to payment of Rs. 50/- as costs to the accused within 15 days failing which prosecution evidence will be closed. Adjourned to 3-11-1971." 3. This order appears to have been passed by the learned Magistrate some time before 11-45 A. M. The record discloses that at about 11-45 A. M. a report under the signature, perhaps of the head constable of the police Station concerned, was handed over to the Assistant Public Prosecutor wherein it was disclosed that prosecution witnesses Devi Sahai, Ram Prasad, Nanua and Birbal had been personally served with notice of the date fixed in the case. The report further disclosed that prosecution witness Kripa Rain was not to be found as prosecution witness. Om Prakash must be served through Municipal Board, perhaps because Om Prakash was an employee of the Municipal Board. Along with this report there is a forwarding note again apparently by some police official attached to the police Station concerned. In this forwarding note it is mentioned that prosecution witnesses Devi Sahai, Ram Prasad, Nanua and Birbal had been personally served but they had not been found present in court. This note was filed in the court by the Assistant Public Prosecutor with an endorsement as follows : "Submitted to Court Sir, Received at 11-45. Case already adjourned. There is service on P. \Vs, but they have not come. Warrants may kindly be issued." No orders appears to have been pass ed by the court in respect of this prayer. It appears that costs, as ordered by the court on the 11th September, 1971, was not paid within the period fixed by this Court. On the 3rd November, 1971 which was the date to which the case had been adjourned, the Assistant Public Prosecutor made an application, relevant portion of which is as under : ... ... ... ... ... Four P.Ws. On the 3rd November, 1971 which was the date to which the case had been adjourned, the Assistant Public Prosecutor made an application, relevant portion of which is as under : ... ... ... ... ... Four P.Ws. are present. On the last date cost of Rs. 50/- was levied upon State for want of witnesses and it was further ordered that in case costs are not paid within 15 days prosecution evidence will be closed. Prosecution had request- ed on that date for issue of warrants against witnesses upon whom summons had been duly served. Due service on P.Ws. and request for issue of warrants is annexed with the adjournment application dated 11-9-71. Paper No. 43/B and 44/B. Perusal of judicial file shows the I progress of the case as follows ...... ............ The fact is that P.Ws. could not be summoned through court as the court remained closed on the three consecutive dates, i. e. 2213,29/5 and 11'71'71, However prosecution of its own accord served on P.Ws. Devi Sahai, Ram Prasad, Nanua and Birbal. As P.Ws. did not attend c n 11-9-71 in spite of serve, the court was requested for issue of summons for P.Ws. 2 to 13 on the charge sheet. 4. This is also true that a report showing service on witnesses and a prayer for issue of warrants was received in court at 11.45 p. m. after the case was adjourned. Consequently no orders were passed thereon. The only reason for not summoning the P.Ws. in advance was that the court remained closed on the previous three dates. How- ever, I had reported the matter to superior officer on 11th September, 1971 but it so appears that the report in original has been misplaced somewhere in the office. That is why the orders of the court could not be complied within the stipulated period. 5. It is, therefore, prayed that one month's time may kindly be allowed for the payment of costs and for producing further prosecution evidence in the interest of justice. 6. It may be mentioned here that the statement contained in this application that the court had remained closed on three consecutive dates, namely, 22nd March, 29th May, and 1st July, 1,171 is might accurate. 6. It may be mentioned here that the statement contained in this application that the court had remained closed on three consecutive dates, namely, 22nd March, 29th May, and 1st July, 1,171 is might accurate. On one of the three dates the case was adjourned at the instance of the counsel for the accused and on the remaining dates there was no sitting of the court became the Presiding Officer happened to be, on leave but as is usual some link officer must have functioned. In this application, in substance, the stand taken was that the order for costs within the time fixed could not be complied with because the intimation sent by the Assistant Public Prosecutor to his superior Order in this respect had been misplaced in the Office. On the same date the learned Magistrate passed the order which has been recommended to be set aside by the Learned Sessions Judge. The learned Magistrate took the view that according to the order dated 11th September, 1971, if cost was n t paid within 15 days, the prosecution evidence would be closed and consequently the State having failed to fulfill the condition, had no right to lead evidence. The learned Magistrate refused to take evidence even of four of the prosecution witnesses, who according to fie application made by the Assistant Public Prosecutor were present in the court. It was ordered that on the next date the statement of fie accused under section 312 would be recorded and arguments heard. Aggrieved by this order the State filed a revision before the learned Session, Judge. Before the learned Sessions Judge tie order of the learned Magistrate was supported on the ground that the order dated 11th September, 1971 had become final and it operated as a bar to the prosecution leading any evidence on its failure to comply wit's the condition regarding payment of costs within the time fixed. The learned Sessions judge took the view that in the charge-sheet the list of witnesses to be examined by the prosecution had been given and it was the duty of the learned Magistrate to have summoned those witnesses. According to the learned Session Judge if the witnesses had failed to turn up on the (late fixed the prosecution was not to be blamed for it. According to the learned Session Judge if the witnesses had failed to turn up on the (late fixed the prosecution was not to be blamed for it. The view taken by the learned Sessions Judge was that it was the duty of the learned Magistrate to have enforced the attendance of the witnesses mentioned in the charge sheet. The learned Sessions has held that the Code casts upon the Magistrate a duty which he must perform strictly. Unless the public prosecutor had intimated to the learned Magistrate that he had closed the prosecution case it was not open to him to close the prosecution evidence merely because the witnesses did not turn up or the costs were n )t paid. The learned Sessions judge has held that the order passed by the learned Magistrate is manifestly unjust and illegal, and has consequently recommended the setting aside of the order of the learned Magistrate dated 3rd November, 1971. I have heard learned counsel for the State as well as learned counsel for the accused and it appears to me that the reference made by the learned Sessions Judge must be accepted. 7. The manner in which the case was conducted before the learned Magistrate has already been given in some detail in an earlier part of this judgment. As many as on six dates the case could not be taken up because the Presiding Officer of the Court was on leave or he could not get time on account of other judicial work. On three occasions the case had to be adjourned at the instance of the accused or their counsel. Therefore, it is not a case in which it can be held unhesitently that the prosecution was adopting dilate pry tactics. It may be kept in mind that it is not a case where prosecuting agency undertook to produce evidence unaided by the court. In fact on 27th June, 1969 a specific prayer had been made by means of an application that summons may be ordered to issue for the appearance of the prosecution witnesses. It does appear that in fact summons were actually issued because there are some summons present on record disclosing that they had been served on some of the prosecution witnesses. On the 2lyd of July, 1969 there was no sitting of the court because the Presiding Officer was on leave. It does appear that in fact summons were actually issued because there are some summons present on record disclosing that they had been served on some of the prosecution witnesses. On the 2lyd of July, 1969 there was no sitting of the court because the Presiding Officer was on leave. On the next few dates we do not know whether the prosecution witnesses turned up or not. If the prosecution witnesses did appear on that dates the link-office or the Reader of the Court, while fixing dates for hearing, should have obtained on the order-sheet the signatures or the thumb-marks of the witnesses to ensure that they had notice of the dates fixed for hearing. This does not appear to have been done on any date. If the court or its Reader did not take this step the only course open to the court was to issue fresh summons for the intimating to them the next date fixed for their appearance. This also does not appear to have been done. On the 11th September, 1971, the application which was made by the Assistant Public Prosecutor contained two distinct and separated prayers. Because of the fact that on that date the witnesses had not turned, up the Assistant Public Prosecutor prayed for adjournment of the case to some other date. Apart from that he also prayed that the court may issue summons for appearance of the witnesses. The learned Magistrate was right in as far as he held that for 11th September, 1971 the A. P. P. should have obtained summons in advance. It was for this reason that while adjourning this case to 3rd November, 1971 the learned Magistrate ordered for payment of Rs. 50 as costs which he was entitled to do in view of section 344 of the Code. The learned Magistrate, however, passed no orders at all in respect of the prayer for issue of summons for the prosecution witnesses. 50 as costs which he was entitled to do in view of section 344 of the Code. The learned Magistrate, however, passed no orders at all in respect of the prayer for issue of summons for the prosecution witnesses. Sub-section (6) of Section 251-A of the Code, after its amendment by the Criminal Laws (U.P. Amendment) Act, 1961 runs 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 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. In the present case the application for summoning the witnesses, it is true, was not made before the date fixed for examination of the prosecution witnesses. Nonetheless the principle under lying sub-section (6) of section 251-A did apply and consequently when A.Y.P. sought the aid of the court for securing the appearance of the prosecution witnesses it was the duty of the court to issue summons to them. It has already been mentioned that after the order of the Presiding Officer was passed from the report submitted by some official of the Police Station the A. P. P. became aware of the fact that some of the prosecution witnesses had already been served with notice of the date for their appearance as witnesses in court through a Robkar' issued from the police station and that in spite of it these witnesses had n.,t turned up. The A. P. P. consequently made a request to the court for warrants being issued to procure presence of such witnesses. Even on this application the learned Magistrate did not pass any order and thus afforded no assistance to the prosecution in securing presence of the witnesses. This was a failure of duty on the part of the learned Magistrate. It must be clearly borne in mind that trial of a cognizable offence by the warrant procedure is not a litigation between two private parties and must not be treated by learned Magistrates in that light. This was a failure of duty on the part of the learned Magistrate. It must be clearly borne in mind that trial of a cognizable offence by the warrant procedure is not a litigation between two private parties and must not be treated by learned Magistrates in that light. It is the duty of the Magistrates to administer justice and see that offenders do not go unpunished merely because of the incompetence or negligence of A. P. Ps. 9. As far as the order dated 11th September, 1971 is concerned it appears to me that it suffers from impropriety. Peremptory orders of that type irrevocably shutting out prosecution evidence on account of failure on the part of the prosecution to pay costs awarded within a fixed time are wholly out of place in criminal trial. Such orders are passed in Civil cases to ensure that costs award. ed are paid by a party seeking adjournment so that the other party may not be forced to take separate proceeding for its realisation. As far as criminal courts are concerned they have ample powers by virtue of section 547 of the Code to enforce payment of costs order- ed by realising them as fines without the other party being put to any inconvenience. It was thus wholly unnecessary for the learned Magistrate to pass a peremptory and punitive order of the nature under consideration merely to ensure payment costs by the State. 10. Punishment of crime is a function of the State and criminal courts cannot absolve themselves of the duty of administering justice and punishing culprits merely because of the shortcomings of the prosecuting agency. I wish however to make it clear that courts on that account need not become play things in the hands of negligent and incompetent Public Prosecutors. Courts have ample powers by which even with- out shutting out prosecution evidence they can compel the prosecuting agency to act speedily and expeditiously and thus prevent harassment of the accused. The learned Magistrate undoubtedly could while granting adjournment at the instance of the prosecution which had obtained adjournments earlier justifiably in exercise of its power under section 344 of the Code award costs to the accused to compensate them for the expenses incurred by them and harassment caused to them. The learned Magistrate undoubtedly could while granting adjournment at the instance of the prosecution which had obtained adjournments earlier justifiably in exercise of its power under section 344 of the Code award costs to the accused to compensate them for the expenses incurred by them and harassment caused to them. The proper criterion to be kept in mind by courts while awarding adjournment on payment of costs to my mind was laid down by Mohd. Noor, J, in Ishar Singh v. Shama Dusadh and others, A.I.R. 1937 Patna 131 in the following words : "No doubt the Criminal Courts are empowered to order an accused, if he asked for adjournment, to pay costs to the complainant but this power should not be exercised in such manner as to place obstacle in the way of the accused properly defending himself." 11. This principle is equally applicable to cases where adjournment on payment of costs is granted at the instance of the prosecuting agency. In the instant case the learned Magistrate when he directed that if the costs .are not paid within 15 days of the order prosecution evidence would be closed, to my, lost sight of the principle enunciated by Mohd. Noor, J. It was to my mind extremely undesirable on the part of the learned Magistrate to fix time for payment of costs peremptorily with such serious consequences for future happenings which apparently left the court powerless to deal with events that might have arisen in between. As observed by the Supreme Court in Mahanih Ram Das v. Ganga Das, A.I.R. 1961 S.C. 882 while dealing with' a conditional order passed in a civil appeal "these orders turn out often enough to be inexpedient. Such procedural orders, though peremptory are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely stop a court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that if the appellant had started with the full money ordered to be paid and came well in time, but was set upon and robbed by thieves the day previous, he could not ask for extension of time, or that the court was powerless to extend it." These observations made by the Supreme Court apply with full force to the case before me. The learned Magistrate while passing the order dated 3rd November, 1971 seems to have been under the impression that because the condition with regard to payment of costs within fixed time had not been complied with he was powerless on account of the order dated 11th September, 1971 to allow the prosecution to lead evidence under any circumstances. The order of 11th September, 1971 was merely a procedural one and it was not irrevocable as the learned Magistrate seems to have considered it. If circumstances demand the learned trial Magistrate to my mind could surely give it effect in a modified form. 12. For the reasons given by me, I accept the reference made by the learned Sessions judge and set aside the order dated 3rd November, 1971. The learned Magistrate will proceed with the case after giving an opportunity to the prosecution to lead such evidence as it might like to under section 251-A (6) of the Code. To remove any confusion that might arise, I, in exercise of my power under section 439 of the Code, suo motu modify the order passed by the learned Magistrate dated 11th September, 1971 and direct the deletion of the words 'failing which the prosecution evidence will be closed,' therefrom. The record of the case will be sent down by the office to the learned Magistrate at an early date for an expeditious disposal of the case which has been pending since 1969.