Order.*- The question in this criminal appeal is whether the trial Court can acquit the accused under section 251-A(11) of the old Criminal Procedure Code in a warrant case after charges are framed when the prosecution altogether fails to take any interest though several adjournments have been given. Despite this total absence of interest taken by the prosecution, is the Court required to summon the witnesses itself to conduct the trial and dispose of the case on its merits? In Public Prosecutor v. Gundu Rao1, Punnayya, J., took the view that it is the duty of the Magistrate to take coercive steps to compel the attendance of prosecution witnesses. In so doing, my learned brother has relied on the decision of Mirza, J. in Public Prosecutor v. Pachiyappa2, and disagreed with the view of the Calcutta High Court in Jyotirmoyee Bose v. Birendra Nath3. In the circumstances, I think that it is better if a Division Bench decides this question. I therefore refer the criminal appeal to a Division Bench and direct that the papers be placed before the learned Chief Justice for posting. Pursuant to the above order the appeal came on for hearing before a Division Bench consisting of Chennakesav Reddy and Madhava Rao, JJ. Public Prosecutor, for Appellant. B. Veerabhadra Rao, Advocate, for Respondent. The judgment of the Bench was delivered by Chennakesav Reddy, J*.-This appeal against acquittal preferred by the State Public Prosecutor is placed before us on reference made by our learned brother Sambasiva Rao, J. The learned Judge felt that there was divergence of judicial opinion on the point involved in the case. It is: whether a criminal Court cannot acquit the accused under section 251-A(11), Criminal Procedure Code (old) in the absence of the production of any evidence by the prosecution and whether it is duty bound to take coercive steps to compel the attendance of the prosecution witnesses in a warrant case even though the prosecution altogether failed to take any interest to produce the witnesses inspite of several adjournments taken by the prosecution for the production of the witnesses. 2. 2. The relevant facts giving rise to the appeal lie in a narrow compass: The Excise Sub-Inspector, Pamidi, laid a charge-sheet before the Judicial First Class Magistrate, Gooty, against the accused V. Mune Naik, under section 34(a) of the Andhra Pradesh Excise Act alleging that he was found in possession of a mud pot containing two litres of arrack on 19th July, 1970. The charge-sheet was filed on 20th March, 1972. The case was taken on file as C.C. No. 287 of 1973. The accused appeared on 24th November, 1973 and charges were framed against him on 18th December, 1973 and summons were issued for the production of witnesses. The case underwent several adjournments from 18th December, 1973 to 29th October, 1974. For all the adjournments, the accused was present. But the prosecution witnesses were not produced nor the summons returned unserved. The learned Magistrate acquitted the accused under section 251-A(11), Criminal Procedure Code, on 29th October, 1974, observing: “The accused has been regularly attending the Court for quite a number of adjournments for well over 10 months, in spite of the witnesses not being produced into Court. In spite of the learned A.P.P.Gr. II being appraised of the matter on the date of every adjournment, there seems to be no effect on the Excise Department to produce the witnesses. Thus, the case is pending since a long time. The Court, is therefore, inclined to came to the conclusion that the complainant has no interest, whatsoever, in the matter. So, I am constrained to infer, that the prosecution has no evidence in the case to adduce on their behalf and I further feel that it is not in the interests of justice that the accused be any more subjected to the harassment of this nature”. The State has, therefore, preferred this appeal. 3. The question is whether it is the duty of the Magistrate trying the case under the warrant procedure, when no evidence has been produced by the prosecution, to compel the attendance of the prosecution witnesses, or, whether he is free to acquit the accused for want of prosecution evidence. Judicial opinion in this regard is conflicting. One view is that the Magistrate will not be justified in passing an order of acquittal where no evidence has been produced by the prosecution as the case has to be decided by the Magistrate on merits. Judicial opinion in this regard is conflicting. One view is that the Magistrate will not be justified in passing an order of acquittal where no evidence has been produced by the prosecution as the case has to be decided by the Magistrate on merits. Therefore, the Magistrate is bound to compel the attendance of the prosecution witnesses. This view was expressed by this Court by Mohamed Mirza, J., in Public Prosecutor v. Pachiuppa Mudaliar1. The learned Judge observed: “...... Once the Magistrate takes cognizance of the case, it becomes his bounden duty to go to the root of it and do justice in the matter. The Criminal Procedure Code has given very wide powers to the Magistrate only with a view to clear any possible obstacle in the way of the Magistrate to do justice in a case. Taking cognizance of a case means that the Magistrate prima facie is satisfied that the offence has been committed and in such a situation it is necessary for the Magistrate to find out who the culprit is and in this process he must adopt every method available to him under law for coming to the decision. If the prosecution is slack and neglectful in its duties, it does not follow that the Magistrate also should fall in line with it. If the persons conducting the prosecution feel disinclined to conduct the prosecution, in that case they can very easily get their cases dismissed by mere default.” This decision was relied upon and followed by Punnayya, J., in The Public Prosecutor v. Gundu Rao2. A Division Bench of Kerala High Court in State v. Aboobakar3, held that in cases where parties do not produce evidence it is the duty of the Court in the interests of justice to summon such of the witnesses whose evidence is necessary for a just decision of the case and the Court is not so helpless as to pass an order of acquittal of accused for want of evidence. 4. 4. The Madras High Court in Public Prosecutor v. Sambangi Mudaliar4, held that in a case where the prosecution has neglected to adduce evidence in support of the prosecution case as required under section 251-A(11), Criminal Procedure Code, the acquittal of the accused will not be appropriate as the Court has already framed a charge under section 251-A(11), Criminal Procedure Code and an important duty is laid on the Court to see that all the powers available to the Court for the examination of witnesses are exercised for a just decision of the case irrespective of the laches of the complainant. 5. In State of Mysore v. Kalillulla Ahmed Shariff5, wherein the Magistrate acquitted the accused on the ground of absence of evidence for the prosecution the learned Judges observed: “It is also clear from the wordings of subclause (ii) of section 251-A that 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. As has been pointed out by their Lordships in State of Mysore v. Narasimhegowda6, to which we have already referred, the word ‘finds’ in subclause (ii) of this section is used in the sense”decides“implying that the finding to be arrived at shall be after consideration of the evidence adduced by the prosecution, the plea of the accused and the evidence adduced on his behalf if any, and the Code does not provide for or contemplate an order of acquittal being recorded merely on the ground that the prosecution ‘failed to produce the witnesses on the date fixed by the Magistrate. The words used in subclause (ii) are ‘finds the accused not guilty’ and ‘record an order of acquittal’. If the Legislature wanted merely that the accused should be acquitted, it could have simply used the words ‘pass an order of acquittal’. Finding the accused not guilty implies that the Court has applied its mind to the merits of the case after recording evidence and then only found him not guilty.” 6. In Municipal Board v. Raja Ram3, the Allahabad High Court held that the Court is not justified in acquitting the accused simply because the witnesses are not present, and it was the duty of the Court to take coercive steps for the attendance of the witnesses if they fail to appear. In Municipal Board v. Raja Ram3, the Allahabad High Court held that the Court is not justified in acquitting the accused simply because the witnesses are not present, and it was the duty of the Court to take coercive steps for the attendance of the witnesses if they fail to appear. The Mysore High Court also in The State of Mysore v. Somala1, reiterated the same opinion expressed in State of Mysore v. Kalilulla Ahmed Shariff2. 7. Another view is where the prosecution seeks the agency of the Court in securing the attendance of the prosecution witnesses. It is the duty of the Magistrate to take all the steps to secure their attendance instead of acquitting the accused under section 251-A (11), Criminal Procedure Code, on the ground of absence of evidence for the prosecution. This view was expressed by the Mysore High Court in State of Mysore v. Narasimha Gowda3. The learned Judges held that in a case where the Magistrate has ordered summons to be issued to the prosecution witnesses for appearance and when there was no material before him to show that there had been any remissness in the prosecuting agency for effecting service, it was the duty of the Magistrate to have enquired into the case of non-service or non-return and to have taken further necessary steps to secure the appearance of the witnesses and that the order of acquittal under section 251-A(11), Criminal Procedure Code, on the ground that no witnesses were in attendance and there was no evidence as such against the accused persons, was unsustainable. The Patna High Court in The State of Bihar v. Polo Mistry4 observed: “The service return of the summons had also been received back against 15 prosecution witnesses. If thereafter none of the prosecution witnesses turned up in response to the summons of the Court, then it was the obvious duty of the learned Magistrate to have steps to compel their attendance by issuing warrants of arrest against them in accordance with section 90(b) of the Code of Criminal Procedure. It is apparent that the prosecution witnesses had failed to appear in Court in spite of service of summons upon them, and there was no material before the learned Magistrate to indicate that there was any reasonable excuse for the failure of the prosecution witnesses to appear in response to the summons of the Court. It is apparent that the prosecution witnesses had failed to appear in Court in spite of service of summons upon them, and there was no material before the learned Magistrate to indicate that there was any reasonable excuse for the failure of the prosecution witnesses to appear in response to the summons of the Court. The order of the learned Magistrate shows that the Assistant District Prosecutor in charge of the prosecution had made a prayer before him for issue of warrants of arrest against the prosecution witnesses but this prayer was unjustifiably refused......” 8. To the same effect are the rulings of the Calcutta High Court in Paban Chandra Mujumdar v. Dulal Ghouse5 and the Orissa High Court in State of Orissa v. Sib Charan Singh6. 9. Then there is the other extreme view to the effect that no duty is cast on the Magistrate to summon the witnesses and the Magistrate is not bound to compel the attendance of the witnesses either suo motu or on the application of the prosecution under any circumstances and that he would be justified in acquitting the accused under section 251-A (11), Criminal Procedure Code, for want of prosecution evidence when no witness is produced by the complainant in the case. This view is shared by the Calcutta High Court in Sm. Jyothirmoyee. Bose v. Birendra Nath Prodhan7, the Allahabad High Court in. State v. Ram Lal8 and the Gujarat High Court in State of Gujarat v. Bava Bhadya9. The Calcutta High Court held in a case tried under section 251-A of the Code, the Magistrate is not compelled, as he is if the case is tried as a warrant case instituted otherwise than on the police report, to proceed in terms of sections 256 and 257 of the Code. The Allahabad High Court held that the whole object of the section appears to have been that the police should be prepared to produce its witnesses when the case was called upon for hearing and it should not be permitted to take shelter behind the absence of witnesses on account of want of summons by the Court. The Allahabad High Court held that the whole object of the section appears to have been that the police should be prepared to produce its witnesses when the case was called upon for hearing and it should not be permitted to take shelter behind the absence of witnesses on account of want of summons by the Court. In the third of the cases cited above, the Gujarat High Court held that the Magistrate was entitled to acquit the accused under section 251-A(11), Criminal Procedure Code, when once a charge is framed against the accused in warrant cases and the prosecution failed to produce their witnesses since there was no evidence in the case. 10. In our country, we have adopted the English ‘accusatorial’ criminal procedure in contrast to the ‘inquisitorial’ system followed in the continent. In the ‘inquisitorial’ system the presiding Judge is turned into a second and more august prosecutor. The prosecutor is relatively inactive. In the ‘accusatorial’ process, the Judge is an impartial arbiter in a contest or combat between the prosecution and the accused. It is not regarded as the duty of the prosecutor to obtain a conviction. It is his duty to bring the full facts before the Court. The duty of the defence counsel, on the other hand, is to invoke all the legitimate means to secure an acquittal. As an arbiter, it is the duty of the presiding Judge to intervene if any foul or unfair methods are adopted by any side in the contest or combat. If the Judge or the Magistrate thinks that the case has not been thoroughly explored and presented by the prosecutor due to some oblique motive, then it is the duty of the Court to invoke such steps as are conferred on the Court to hold the scales even and render Justice. It is well to remember that the ‘function of the criminal Court is to determine the culpability of the person arraigned before it unlike a Commission of Enquiry which is concerned with the ascertainment of facts and so summons itself the persons whom it considers necessary for the purpose. In a criminal trial no useful purpose would be served in compelling the attendance of a witness who is only to appear and swear that he does not know anything about the occurrence or that he cannot identify the accused persons. In a criminal trial no useful purpose would be served in compelling the attendance of a witness who is only to appear and swear that he does not know anything about the occurrence or that he cannot identify the accused persons. Such a step would only serve to harass an accused person. It is, therefore not desirable to lay down as a proposition of law that when the prosecution fails to produce the evidence in support of a charge in warrant cases, it is the duty of the Court to step in and take coercive steps to compel the attendance of the witnesses. To so pronounce would be a disturbing principle which would prove counter-productive. The Court house is the only place on earth where the vicious and the virtuous may contend upon perfectly equal terms: to receive the same patient and impartial hearing and have their respective dues, whatever they may be meted out in the decision. Just because of an accusation of a charge against a person, the prosecution, as an accursor, cannot be placed on a higher pedestal, and the trial cannot be allowed to be kept pending for an unduly long period. It is axiomatic that criminal justice is sweetest when it is freshest. It is neither possible nor desirable to lay down with any mathematical precision as to when a Magistrate will be justified in acquitting the accused person when the prosecution fails to produce the evidence. In any individual case likely to end in grave and intolerable injustice as a result of the negligence of the prosecution to produce its witnesses, the Magistrate would be justified in taking coercive steps to compel the attendance of the witnesses. In other cases, the Magistrate would be justified in acquitting the accused. The liberty of the individual has to be upheld by safeguarding the rights of the accused, while at the same time protecting the law-abiding public against lawlessness. It is the duty of the criminal Courts to balance the scales of justice and safeguard peace and orderliness in society. 11. Now let us turn to the statutory provisions prescribing the procedure to be followed in the trial of warrant cases by the Magistrate. Section 251-A of the Code of Criminal Procedure lays down the procedure for the trial of cases instituted on police report. 11. Now let us turn to the statutory provisions prescribing the procedure to be followed in the trial of warrant cases by the Magistrate. Section 251-A of the Code of Criminal Procedure lays down the procedure for the trial of cases instituted on police report. Under section 251-A(7), Criminal Procedure Code, the Magistrate is only bound to examine such witnesses as are produced by the prosecution. If the prosecution fails to adduce the evidence before him for some reason or the other, the Magistrate is not bound to compel the attendance of the witnesses in every case either suo motu or on the application of the prosecution. There is no statutory mandate to the Magistrate to police the action of the prosecution. The Magistrate has to exercise his discretion however, fashioned by tradition dependent on the facts and circumstances of each individual case. In a case where the prosecution has taken no steps to produce the witnesses or to seek recourse to agency of the Court to secure the attendance of the witnesses, the Magistrate will be justified in acquitting the accused unless he feels that the prosecution was unfair prompted by oblique motives. In a case where the prosecution had taken all necessary steps to produce the prosecution witnesses and still could not produce and thereafter sought recourses to the agency of the Court for securing the attendance of the prosecution witnesses, it would be the duty of the Magistrate to take all such steps necessary to secure their attendance. With great respect to the learned Judges, we are unable to agree with the view expressed in State of Mysore v. Kalilulla Ahmed Shariff1, that the word ‘finds’ employed in section 251-A(11), Criminal Procedure Code, implies that the finding to be arrived at shall be after consideration of the evidence adduced by the prosecution and the Magistrate will not be justified in acquitting the accused under section 251-A (11), Criminal Procedure Code, on the ground that no evidence has been produced. If there is evidence and the prosecution fails to produce such evidence although the case was adjourned on several occasions for the production of evidence, the normal presumption is that the evidence, if produced, would be unfavourable to the prosecution. Therefore, the order of acquittal, in such circumstances, passed by the Magistrate would be justified and it would be a finding on the merits of the matter. Therefore, the order of acquittal, in such circumstances, passed by the Magistrate would be justified and it would be a finding on the merits of the matter. Our view finds ample support from the decision of the Punjab High Court in State v. Kali Ram Nand Lal2. The learned Judge after referring to the several decisions on the question overved as follows: “This, however, does not mean that the Magistrate conducting the trial under section 251-A of the Criminal Procedure Code, must go on adjourning the trial till it suits the convenience of the prosecution to produce its evidence. Whether or not the Magistrate will proceed to enforce the attendance of the witnesses for the prosecution and grant adjournment for the purpose would depend upon the facts and circumstances of each case. Though it is true that the Magistrate should not be in a hurry to close the prosecution evidence, yet at the same time the Magistrate must be vigilant enough to see that the process of the Court is not abused by the prosecution obtaining unnecessary adjournments resulting in harassment of the accused”. 12. Therefore, either on the basis of the basic principles of our criminal procedure (‘accusatorial’ system of criminal procedure) or on the basis of the express provisions enacted in section 251-A, Criminal Procedure Code, the proposition laid down by the learned Judges of this Court in Public Prosecutor v. Pachiyappa Mudaliar3 and Public Prosecutor v. Gundu Rao4, that it is the duty of the Magistrate to compel the attendance of the witnesses in a warrant case if the prosecution fails to produce the witnesses, cannot be supported. 13. Now let us turn to the facts of this case. The accused in this case was alleged to have been found in possession of a mud pot containing two litres of arrack on 19th July, 1970, an offence punishable under section 34-A of the Andhra Pradesh Excise Act. The charge-sheet itself was filed on 20th March, 1972, and the case was taken on file as C.C. No. 287 of 1973 on 8th November, 1973. The accused appeared in Court on 24th November, 1973 and charges were framed against the accused on 18th December, 1973. Since then the accused was regularly present for every adjournment and the case underwent as many as 12 adjournments. But the prosecution failed to produce its witnesses. The accused appeared in Court on 24th November, 1973 and charges were framed against the accused on 18th December, 1973. Since then the accused was regularly present for every adjournment and the case underwent as many as 12 adjournments. But the prosecution failed to produce its witnesses. The Magistrate then acquitted the accused on 29th October, 1974 holding that the complainant had no interest whatsoever in the matter and no effort was made to produce the prosecution witnesses and that he was constrained to infer that the prosecution had no evidence to adduce on their behalf. He further held that it would not be in the interest of justice when the cases was pending for such a long time and the accused was appearing for every adjournment to subject the accused to any harassment of such a nature. On the facts of this case, we positively feel that the Magistrate was justified in acquitting the accused. The appeal is accordingly dismissed.