JUDGMENT
S. Velu Pillai, J.
1. This appeal by the State, arises out of the acquittal of the four accused, in a case against them upon a police report for offences under Section 448 read with Section 114, I. P. C. Including the complainant, four witnesses were examined for the prosecution. But the Sub-Inspector of Police did not attend even on the adjourned date of hearing and was not examined. Without even considering the evidence on record, on account of the non-examination of the investigating officer, the learned Second Class Magistrate, Trivandrum acquitted the accused under Section 245 (1), Criminal P. C.
Even if the investigating officer was not examined, it was the clear duty of the Magistrate
under Section 245, Cri. P. C., to consider the merits of
the case before proceeding to acquit the accused.
Of course the non-examination of the investigating
officer is a circumstance which may be taken into
consideration by the court, but does not per se
furnish a ground for acquittal. The acquittal can
not be supported. Now that the case has to go
back, the learned Magistrate will see whether he
cannot enforce the attendance of the investigating
officer, for the sake of completeness of the trial. With
the above observations, the acquittal is set aside
and the case is sent back for disposal in accordance with law. The appeal is allowed.