Judgment :- 1. The short question for consideration in this petition filed under S.482 of the Code of Criminal Procedure is whether in a summary trial case for which the procedure is that of a summons case after the examination of some only of the prosecution witnesses, the Magistrate could by himself, inspite of the objection from the prosecution, dispense with the remaining prosecution witnesses on the ground that the case is not going to improve even if they are examined and proceed to acquit the accused under S.255(1). That is what the Judicial First Class Magistrate, Ernakulam has done in ST 36 of 1982, a case instituted on police report as a result of investigation conducted as ordered by the Magistrate under S.156(3) on a complaint filed by the petitioner. Crl. RP 33 of 1984 filed by him was dismissed by the Sessions Judge, Ernakulam. 2. There were 7 witnesses in the charge. On 22-12-1983 three out of the five occurrence witnesses were examined and the case was adjourned for trial to 27-12-1983. On that day since summons was not issued to the other witnesses petitioner applied for issue of summons and it is said that the Assistant Public Prosecutor was absent on that day. That petition was dismissed and on 31-11-1983 the Magistrate pronounced the judgment acquitting the accused. 3. When cognizance is taken under S.190(1)(b) and process issued under S.204 on the satisfaction that there is sufficient ground for proceeding, the Magistrate has to adopt the procedure under Chap.20 of the Code. After stating the particulars of the offence and recording the plea under S.251 if the Magistrate is not adopting the procedure under S.252 or 253 he will have to adopt the procedure under S.254. Prosecution will have to be heard and all such evidence produced by the prosecution will have to be taken and the accused will have to be heard and all such evidence produced by him will have to be taken. Only thereafter acquittal under S.255(1) or conviction under S.255(2) could be had. S.256 and 257 are not applicable because the case is not one instituted on complaint and those contingencies have not arisen also. S.258 authorises the Magistrate to stop the proceedings at any stage for reasons to be recorded in writing and pronounce a judgment of acquittal if the stoppage is after the principal witnesses are examined. S.256 and 257 are not applicable because the case is not one instituted on complaint and those contingencies have not arisen also. S.258 authorises the Magistrate to stop the proceedings at any stage for reasons to be recorded in writing and pronounce a judgment of acquittal if the stoppage is after the principal witnesses are examined. In any other case the accused could be released. S.258 also does not arise for consideration because the Magistrate has not proceeded under that section but only under S.255(1). 4. S.258 of the Code is applicable only to summons cases instituted otherwise than on a complaint. The scope of the section is very wide. It is normally not intended to be applied to cases where there are no special circumstances which make it difficult or impossible or even highly undesirable to proceed in the ordinary way under S.254 and 255. Proceedings could be stopped and an accused acquitted or released under that section if some condition precedent to the institution of the proceeding was absent. As held in Nathu Thakur v. Emperor (AIR 1920 Patna 469) one such instance is where the prosecution was on a wrong report which was subsequently seen to be false by another report. S.258 is an enabling provision and is intended to be applied only in very special and compelling circumstances which made it difficult or impossible for the Magistrate to proceed is the usual way by taking evidence as provided in S 254. If no such circumstances are there then the applicability of S.258 is out of question. It was so held in Santhamma v. Kunju Pillai (1981 Crl. LJ 247). 5. Even though it is the duty of the prosecution to produce witnesses the Magistrate has also a duty under S.254(2) to issue summons to witnesses on the application of the prosecution. Court has the right and duty to compel attendance of witnesses for which provisions are not absent in the Code. When the prosecution is earnest and interested in examining witnesses the court has the duty to use its machinery for enabling the prosecution to examine those witnesses by compelling attendance of witnesses through process. In such a situation acquittal of the accused under S.255(1) without issuing process to witnesses on the ground that witnesses were not produced by the prosecution may not be proper or legal. In such a situation acquittal of the accused under S.255(1) without issuing process to witnesses on the ground that witnesses were not produced by the prosecution may not be proper or legal. If inspite of ample opportunities the prosecution did nut make any earnest or serious attempt to produce witnesses or make any request to court to issue summons to witnesses, it may be a case of the court being helpless to examine ail prosecution witnesses as provided under S.254 before proceeding under S.255 to acquit or convict the accused on the basis of evidence. In such a case there being no justifiable reason for not making the witnesses available and the court has no other go, acquittal under S.255(1) may not be illegal. But as held in State of Kerala v. Abdulla (1984 KLT 452) if the Magistrate instead of applying his mind to consider whether coercive steps ought to be taken, adopt the shortcut of closing the prosecution evidence and acquitting the accused for lack of evidence, the procedure will be arbitrary, unjust and irregular. 6. Unlike in a warrant case when once trial is started there is no provision in summons trial enabling the Magistrate to acquit or discharge the accused before conclusion of trial as provided in S.254 and the only provision is S.255 barring S.258 which, I have earlier stated, could be resorted to only in exceptional cases. In a warrant case instituted otherwise than on a police report over and above the provision in S.245(1) to discharge the accused after the prosecution evidence is over on the ground that no case which, if unrebutted. would warrant conviction, is made out there is also the provision in S.245(2) enabling the Magistrate to discharge the accused at any previous stage even without recording the entire prosecution evidence if be considers the charge to be groundless. No such provision is there in a summons trial. Therefore in a summons trial the Magistrate is not having the option to close the prosecution evidence unilaterally against the desire of the prosecution without examining all the prosecution witnesses on the ground that no useful purpose is going to be served or otherwise. The court is bound in such cases to assist the prosecution in procuring the witnesses it wants to examine and examine them. The court is bound in such cases to assist the prosecution in procuring the witnesses it wants to examine and examine them. The court has the duty of assisting the prosecution in enforcing the attendance of witnesses and examining them when a request for that purpose comes under S.254(2). If still the presence of the witnesses could not be secured and the prosecution also either on account of negligence or recalcitrance does not produce the witnesses after sufficient time and opportunities were given, then only the court will be justified in acquitting the accused for want of evidence under S.255(1) because in such eases the court may have no other option. When the prosecution wants and the court can enforce the presence of witnesses, the court has no right to tell the prosecution that no further witness need be examined. In such a situation the court may not be justified in unilaterally closing the prosecution evidence as a shortcut and acquitting the accused for want of evidence. It was so held by a Full Bench of the Madras High Court also in State v. Veerappan (AIR 1980 Madras 260). 7. So far as this case is concerned, it is clear that the Magistrate did not afford the opportunity for the prosecution to examine further witnesses it wanted. After the examination of pws.1 to 3 the Magistrate even without hearing the prosecution decided to close the evidence. The Magistrate said "By examining pws.1 to 3, it was felt that no improvement could be made in the case, even if the other witnesses ware examined. Hence the examination of the other witnesses were dispensed with." The feeling and dispensation were not that of the prosecution but of the court alone. That is something which the Magistrate was not empowered by any provision: The Sessions Judge has not considered these aspects while confirming the acquittal. Normally I would have interfered in exercise of the inherent powers of this Court for the purpose of quashing the acquittal which is illegal and ordered further trial in the ends of justice. The incident happened in 1981 and we are now in 1987. Six years have elapsed. Acquittal itself was more than three years ago. In such a circumstance I am not inclined to interfere. For that reason alone the petition is dismissed.