( 1 ) THIS petition is directed against the order dt 23-6-77 passed by the addl Munsiff and Judicial Magistrate First Class, Hospet in CC. 1309/75. CC. 1309 of 1975 was registered on a complaint filed by the respondent against the petitioners, alleging that the petitioners had contravened the prohibitory order issued under Sec. 22 (3) of the Mines ACt, 1952 (to be hereinafter referred to as the Act ). On 10-11-7,5 the petitioners filed an application before the Magistrate under Sec. 77 of the Act. Even before filing the said application, they had, on 5-11-75, served a copy of the app lication on the Public Prosecutor as required by Sec. 77 of the Act. By the said application, they contended that four persons representing M/s bharat Timber and Construction Coy (to be hereinafter referred to as the 'other accused') were the persons who were really responsible for the commission of the said offence and the petitioners were entitled, in view of sec. 77 of the Act, to have the other accused produced before the Court on the appointed date of hearing against them. The Public Prosecutor filed a memo stating that in view of Section 77 of the Act, the said persons may be ordered to be present before the Court without prejudice to the allegations made in the original complaint against the petitioners. In view of this memo, the Court issued on 8-12-75 summons to the other accused calling upon them to appear before the Court on 5-1-76. The matter went on in this manner and even till 23-6-77 the other accused were not produced before the Court as the summons remained unserved. Ultimately on 23-6-77 the learned Magistrate dismissed the application filed by the petitioners under Sec. 77 of the Act, after hearing the arguments of the counsel on both sides. Section 77 of the Act reads as follows :" 77. Ultimately on 23-6-77 the learned Magistrate dismissed the application filed by the petitioners under Sec. 77 of the Act, after hearing the arguments of the counsel on both sides. Section 77 of the Act reads as follows :" 77. Exemption of owner, agent or manager from liability in certain cases.-Where the owner, agent Or manager of a mine, accused of an offence under this Act, alleges that another person is the actual offender, he shall be entitled, upon complaint made by him in this behalf and on his furnishing the known address of the actual offender and on giving to the prosecutor not less than three clear days notice in writing of his intention so to do, to have the other person brought before the Court on the date appointed for the hearing of the case; and if, after the commission of the offence has been proved, the Owner, agent or manager of the mine, as the case may be, proves to the satisfaction of the Court- (a) that he has used due diligence to enforce the execution of the relevant provisions of this Act, and (b) that the other person committed the offence in question without his knowledge, consent or connivance, the said other person shall be convicted of the offence and shall be liable to the like punishment as if he were the owner, agent or manager of the mine, and the owner, agent or manager as the case may be, shall be acquitted: provided that- (a) the owner, agent or manager of the mine, as the case may be, may be examined on oath and his evidence and that of any witness whom he calls in support, shall be subject to cross-examination by or on behalf of the person he alleges as the actual offender and by the prosecutor; (b) if in spite of due diligence the person alleged as the actual offender cannot be brought before the Court on the date appointed for the hearing of the case, the Court shall adjourn the hearing thereof from time to time so however that the total period of such adjournments does not exceed three months, and if by the end of the said period the person alleged as the actual offender cannot be brought before the Court, the Court shall proceed to hear the case against the owner, agent or manager as the case may be. "plain reading of the above, shows that the petitioners had filed their application in conformity with the aforementioned provisions, and they were entitled to have the other accused produced before the Court on the date appointed for the hearing of the case. The application was filed on 10-11-75. The order-sheet maintained in the Court of the Magistrate discloses that there was no date appointed for hearing of the case against the original accused, and for the first time the date was fixed as 5-1-76 for the appearance of the other accused. It is to be specifically noted that the date 5-1-76 was not the date appointed for hearing of the case against the petitioners, but was appointed for the appearance of the Other accused. I have alredy pointed out that the matter went on in the same manner for subsequent dates also. Even as On 23-6-77, it is seen from the Order-sheet that no date had been appointed for the hearing of the case against the petitioners. When that is so, clause (b) of the proviso to Sec. 77 of the Act would not at all come into operation. In view of this position in law, I. consider it unnecessary to go into the question whether the petitioners were liable to produce the other accused before the Court or the petitioner should make attempts to have the other accused produced before the Court by applying to the Court to issue process as against the other accused and taking the necessary steps. In view of the foregoing reasons, this petition is allowed and the order dt 23-6-77 passed by the Addl Munsiff and Judicial Magistrate First class, Hospet, in CC. 1309 of 1975, is set aside. The Magistrate is directed to proceed with the case, bearing in mind the observations made in the body of this order. --- *** --- .