DESAI, J. ( 1 ) IN this appeal, the legality and correctness of the judgment passed by the Addl. Munsiff and J. M. F. C. Coorg, Mercara, in C. C. No. 790/76 acquitting respondents 1 and 2 of the offence under Section 353 I. P. C. is challenged. ( 2 ) RESPONDENTS 1 and 2 were accused 1 and 2 respectively in the court-below and they will be referred to as accused Nos. 1 and 2 hereafter for the sake of convenience. ( 3 ) ON 31-8-1974 at about 4-50 P. M. P. W. 1 the survey Supervisor was engaged in surveying the lands bearing Sy. Nos. 92, 93, 91 and 98 etc. , of kanthoor village as per the orders of the learned Munsiff in O. S. 395/1966. At that time, the accused obstructed him while discharging his duties as a public servant, P. W. 1 filed a complaint in the Rural police station, Mercara about it. After completing the investigation, the accused were charge-sheeted for an offence punishable under S. 353 I. P. C. by the P. S. I. Mercara rural Police Station. The accused denied the commission of the offence. The prosecution examined P. Ws. 1 and 2 on 20-1-1978. Then the case was adjourned to 27-1-1978 for further evidence and summons were issued to charge-sheet witnesses Nos. 3, 8, 10 and 11 to appear before the Court on that day for giving evidence. But the summons were returned unserved on 27-1-1978. The learned Magistrate did not grant the request made on behalf of the prosecution for time to produce the witnesses. He treated the prosecution evidence as closed. Then, he examined the accused and acquitted them by his order dated 28-1-1978. Hence, this appeal by the State. ( 4 ) MR. Chouta, learned High Court Government Pleader, urged that the learned Magistrate ought to have issued fresh summons to the witnesses and given an opportunity to the prosecution to prove its case particularly when the summons to the said witnesses had been returned unserved and the procedure adopted by the learned Magistrate is erroneous. ( 5 ) MR. Nanjundaswamy, learned counsel for the respondents, urged that it was the duty of the prosecution to serve the summons and as it was an old case and as the prosecution had not served the summons, the learned magistrate was justified in closing the case. ( 5 ) MR. Nanjundaswamy, learned counsel for the respondents, urged that it was the duty of the prosecution to serve the summons and as it was an old case and as the prosecution had not served the summons, the learned magistrate was justified in closing the case. ( 6 ) ACCORDING to S. 254 (2) of the Code of Criminal Procedure, the Magistrate may. if he thinks fit on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing. ( 7 ) WHEN once, he issues summons he has no discretion to refuse to compel the attendance of a witness upon whom the process has been issued, as observed in Ajab Lal Rai v Bhagawan Sahu, AIR 1933 Pat. 494. In the said case, the question was whether, when once the summons were issued under S. 244 (2) of the old Code, the Court had discretion to refuse to compel attendance of the witness on whom process had been issued. The said provision of S. 244 (2) of the old Code is in pari-materia with S. 254 (2) of the new Code and with respect, we agree with the decision taken in the said case. This view is very well supported by the decision of the Division Bench of this Court in state of Mysore v. Narasimhegowda N. G. , (1964) 2 Kar. L. J. 241. In the said case thpugh their Lordships were dealing with the provision of S. 251-A (11) of the old Code, the principle analysed is applicable to this case also. In that case it is observed as follows:"haying once issued summons to secure attendance of witnesses, it was the duty of the Magistrate to have enquired into the cause of non-service or non-return of summons and to have taken, further steps as were necessary in the circumstances of the case to secure the attendance of witnesses particularly when there was no material before him to show that there had been any remissness on the part of the prosecuting agency. "if the said principle, is not followed, it would amount to stifling the prosecution or the defence and denying a fair opportunity to the parties to establish their cases which may result in injustice. "if the said principle, is not followed, it would amount to stifling the prosecution or the defence and denying a fair opportunity to the parties to establish their cases which may result in injustice. Hence, the Magistrate ought to have taken steps to secure the presence: of the witnesses instead of treating the prosecuticta case as closed and proceeding to judgment. Therefore, the order of acquittal passed by the Magistrate is clearly unsustainable ( 8 ) IN the result, the appeal is allowed, the order of acquittal parsed by the Judicial Magistrate First Class, Coorg in C. C. No. 790/76 is set aside and the case is remanded for fresh disposal according to law after giving an opportunity to the prosecution to adduce further evidence, as expedtiously as possible. --- *** --- .