Ajay K.Basu, J.:-

(1) This is a rule issued against the order of a learned magistrate acquitting the accused opposite parties for non production of witnesses. At the outset mr. K. M. Yusuf, learned advocate appearing for the state urges that the application is not maintainable because this was a state prosecution and the state has not come up in revision but a private party, and in support of his contention he cites the case of (1) thakur ram and ethers v. The state of bihar a. I. R. 1966 s. C. 911 which lays down that the court should not be used as a forum to satisfy the vengeance of a private party.

(2) Mr. Prasun kumar chowdhury (with mr. Amaresh kumar mitra) , learned advocate appearing for the petitioner on the other hand cites the case of (2) khatra basi samal and another v. The state of orissa a. I. R. 1970 s. C 272, which says that ordinarily the state should come up for revision in case the state is not satisfied with the order, but that does not debar the power of the court to exercise its revisional jurisdiction in exceptional cases, for example, when there has been a glaring wrong procedure followed. It says that the revisional jurisdiction would only be exercised in exceptional cases where the interests of public justice require interference for correction of a manifest illegality or the prevention of a gross miscarriage of justice. Similarly the court will interfere when there is glaring defect in the procedure and there is a manifest error on a point of law and consequently, there has been a flagrant miscarriage of justice. In any event, in our view, as the rule has been issued by this court and the matter is before us, the preliminary point has lost much of its force.

(3) In any event, in the present case we find that the last order of the learned magistrate was passed on 21/12/1970 from which the petitioner has come up before us. The order runs as follows :

"all the accused present no. P. Ws. C. S. I. Files remand with 2 m. Cs. Of 2 p. Ws. The m. Cs. Are not convincing. Inspite of repeated adjournments, no evidence is forthcoming. Further adjournment will merely harass the accede. The act are acquitted for lack of evidence."

(4) From the order sheet we find that on 11 - 9 - 1969 the learned magistrate framed charges against all the accused opposite parties under section 147/323/379. Indian penal code and on 18 - 11 - 1969 he ordered summoning of the prosecution witnesses and on subsequent date neither of the accused persons nor any p. Ws. Were present until 19. 5. 70 when the two p. Ws. Were present and the accused persons were present but the accused asked for adjournment. Then on the next date 22 - 7 - 1970 though one p. W. Was present some of the accused persons were not present and the accused submitted that they were unready. Then on the next date i. E. 28 - 9 - 1970 though all the accused persons were present, no. P. Ws. Were present and the prosecution asked for time and the time was given on 21 - 12 - 1970 when the impugned order was passed.

(5) In our view, after the charge is framed the learned magistrate ought to follow the procedure laid down in section 251 (a) criminal procedure code. Subsection 11 of section 251 (a) of the code says 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"

. That means after a charge has been framed, before acquitting the accused the learned magistrate must record a finding that the accused is not guilty. In this particular case there is no such finding. Mr. Jahar lal roy, learned advocate appearing for the opposite parties contended that it is no duty of the magistrate to enforce the attendance of the p. Ws. And if the prosecution does not care to produce the witnesses the magistrate should not be helpless and should acquit the accused as he has done in the present case. Mr. Roy also cites the case of (3) sm. Jyotirmoyee bose v. Birendra nath prodhan and others a. I. R. 1960 cal. 263, mr. Chaudhury learned advocate for the petitioner distinguishes this case and on the other hand cites a case of (4) public prosecutor v. M. Sambangi mudaliar and ors. A. I. R. 1965 mad. 31, which is an authority for a different proposition.

(6) But in the present case we find that the learned magistrate while acquitting the accused has not given any reason for his finding the accused not guilty and also his refusal of adjournment even on the medical ground does mot seem to be proper exercise of discretion when in fact the p. Ws. Were present on earlier dates as will be seen from the order sheet. So considering the facts and circumstances of this case and hearing the arguments of the learned advocates of the parties we are of the view that the order of acquittal passed by the learned magistrate is improper and should be set aside. As the case is pending for a long time, the magistrate should immediately start with this case within a fortnight after the record is sent back.

(7) We therefore make the rule absolute. Let the records be sent back as expeditiously as possible. The 2nd june 1972.

(8) A. K. De, j : i agree, i would, however, like to say a few words of my own on the two questions of law that arose and were pressed for decision.

(9) A warrant case, taken cognisance of on a charge sheet by the police, ended in an order of acquittal. State has not filed any appeal against the order. The informant has moved against the order in an application for revision under section 439 cr. P. Code. State advocate contends that the informant private party in the police case has no locus standi to file such an application and relies on the case of (1) thakur ram and others v. The state of bihar, reported in a. I. R. 1966 s. C. 911 to lend support to his contention. This decision is not any authority for the extreme proposition of the state advocate that in no case a private party can file an application in revision against an order of acquittal in a police case. It has been clearly stated in that case and also in the case of (2) khetra bad carnal and another v. The state of orissa, reported in a. I. R. 1970 s. C. 272 a later decision of the same court cited by the petitioner's advocate mr. P. K. Choudhury that there are exceptions, though only few, when the private party informant may be the aggrieved party to move high court in revision. One of such exceptional occasions is where there is a glaring defect in procedure resulting in miscarriage of justice. Upon a consideration of this case on merits, as will be indicated below, i am of opinion that the instant case comes under that exception. The contention of the state advocate mr. Yusuf fails.

(10) The other question of law in this case is whether a magistrate, after framing charge in a warrant case on a police report, was right in ordering acquittal merely on the failure of the prosecution to produce its witnesses without finding that the accused, so charged by him, is not guilty mr. P. K. Choudhury (with mr. A. K. Mitra) submit that the order is wrong as the magistrate has not exhausted all processes to compel attendance of prosecution witnesses and as he has not strictly gone through the several steps prescribed by sub - sections (8) to (10) of section 251a and as he has not recorded any finding of not guilty before ordering acquittal. In support of the first part of his submission he strongly relied on the case of (4) public prosecutor v. M. Sambougi mudaliars and ors. , reported in a. I. R. 1965 madras 31, mr. Jaharlal roy, advocate appearing for the accused opposite parties, submits in reply that the magistrate is not required under section 251a to take steps for causing attendance of prosecution witnesses and that he is not to take recourse to the procedure in sub - sections (8) to (10) if the prosecution fails to produce witnesses as enjoyed under section 251a (6) and that a finding of not guilty is to be made only if prosecution examines witnesses. State advocate adopts the contention of mr. Choudhury for the petitioner mr. Roy cites the case of (3) sm. Jyotirmoyee bose v. Birendra nath pradhan and others in a. I. R. 1960 cal. 25 to strengthen the first branch of his submission.

(11) It is seen from the order sheet of the magistrate that he summoned prosecution witnesses presumably on the application, oral or written of the prosecution. In this case, the prosecution sought court's assistance for production of witnesses and the court granted that. It is also seen from the order sheet that prosecution witnesses were present on dates in response to the court's summons though they were not examined either because all the accused were not present or the accused wanted time or because prosecution prayed for remand and the court issued fresh summons for more witnesses. Charge was framed on 13 - 11 - 1969. There were five adjournments after that, two on the prayer of accused, two for absence of some of several accused and one on the prayer of prosecution on a date when two prosecution witnesses were present. The magistrate, on the last date fixed for trial, noticed that prosecution witnesses were not present and recorded an order of acquittal observing "no p. Ws. Inspite of repeated adjournments the prosecution is not adducing any evidence". It is to be noticed from what has been pointed out before, that this observation is not fact based. He did not find that the accused was not guilty. He did not say that the documents, referred to in section 173 cr. P. Code, on which being satisfied he framed the charge, had not been proved and he was, therefore of opinion that the accused was not guilty. He did not call upon the accused to enter into his defence under section 251a (8) and did not examine him under section 342 cr. P. Code at the conclusion of prosecution evidence which in this case according to him was not adduced. The learned magistrate appears to be of the view that prosecution witnesses would not have proved the case if they were produced. But at that stage, the accused had no means to know the view that the magistrate would take for non production of prosecution witnesses. He should therefore, have been examined under section 342 cr. P. Code, sub - section (ii) in unambiguous term enjoined a finding of not guilty, whether the evidence of prosecution witnesses was given or not.

(12) The case cited by mr. Jaharlal roy has no application here. Here the prosecution applied for production of prosecution witnesses and the court granted it. In the case cited, there was no such application. Besides, certain other facts, transpiring in that case and noticed at the end, namely, the long delay, a number of adjournment etc. Entered into consideration of the court. That case was referred to in the madras case cited by the petitioner and was explained. It is pertinent to note hen that the views of most of the high court, namely of mysore, orissa, assam and patna, prefer the view taken by the madras court. We may refer to the cases reported in (narsingha) a. I. R. 1965 mysore 167 (shibcharan) a. I. R. 1962 orissa 157 (nathuram darjee v. Pannalal) a. I. R. 1961 (assam) 97 (state v. Polo mistry and ors.) a. I. R. 1964 patna 351. I need not say more in view of my conclusion recorded above, that the calcutta case cited by mr. Roy is distinguishable on facts. The contentions of mr. Choudhury have force and shall be upheld. The rule should be made absolute.