Rajasthan High Court - Jaipur
State Of Raj. vs Murari Lal And Ors. on 24 April, 2001
Equivalent citations: 2002(3)WLN261
JUDGMENT Sunil Kumar Garg, J.
1. This appeal has been filed by the State of Rajasthan against the judgment and order of acquittal passed by the learned Chief Judicial Magistrate on 11.10.99 in Criminal Case No. 214/91 by which the learned Magistrate acquitted the accused respondents for the offence under Sections 420, 467, 468, 471 and 120B I.P.C. on the ground of non-production of evidence by the prosecution.
2. It arises in the following circumstances:
(i) The case of the prosecution in short is that on 29.9.89, Shri Ram Singh, Sub Inspector, Vigilance, Jaipur camp Hanumangarh lodged a report with the Police Station Kotwali Hanumangarh Junction stating that the accused respondent Murari Lal in conspiracy with other accused respondents presented an application showing himself as Mani Ram S/o Ladu Ram Meghwal, resident of Rampura in the office of Roadways, Bikaner and impersonating himself as Mani Ram got service as conductor.
(ii) On this report, a case was registered and investigation was commenced.
(iii) After usual investigation, a challan was filed in the Court of Chief Judicial Magistrate against the accused respondents for the said offences. The challan was filed on 24.8.91.
3. The relevants dates of this case are as follows:
(i) The challan was filed on 24.8.91 but the accused respondents put in appearance in the Court on 22.2.96.
(ii) Charges were framed on 1.8.96 for the aforesaid offences. Thereafter the accused persons did not remain present in the Court, but their personal attendance was dispensed with.
(iii) From the order-sheet dated 1.8.96, it also appears that first three witnesses were ordered to be summoned though in the charge-sheet, as many as 15 witnesses were mentioned.
(iv) For seven months on three dates witnesses did not appear. On 28.8.97, 17.11.98, 23.1.98 and 6.4.98, witnesses were also summoned, but not present. Even accused respondents were not present and their personal attendance was dispensed with.
(v) on 11.8.98, the accused did not appear and their bail bonds were forfeited and they put in appearance on 17.9.98 and bail was granted to them.
(vi) One witness Om Prakash was present on 19.5.99 and his statement was not recorded and the file was ordered to be put up on 8.7.99.
(vii) On 8.7.99, another witness Ganpat was present and Presiding Officer was on leave, therefore, his statement was also not recorded and the file was ordered to be put up on 25.8.99.
(viii) On 25.8.99, P.P. was directed to produce witnesses and in case witnesses would not be produced by the prosecution, the evidence would be closed and the file was put up on 11.10.99.
(ix) On 11.10.99 the impugned judgment and order was passed by the learned Magistrate by which he acquitted the accused respondents for offences under Sections 420, 467, 471 and 120B I.P.C. on the ground that the prosecution has failed to produce the witnesses and in absence of that no case of prosecution can be found to be proved.
4. Aggrieved from the judgment and order of acquittal dated 11.10.99, the State has filed the present appeal.
5. In this appeal it has been argued on behalf of the P.P. that the record of the case shows that only three witnesses were ordered to be summoned out of list of witnesses numbering 15 and on two occasions, one witness was present, but his statement could not be recorded and actual delay which has been caused at the stage of trial was caused by the accused respondents themselves.
6. It has been argued that it was duty of the Chief Judicial Magistrate to summon the witnesses and the order of acquittal passed without procuring the attendance of the witnesses is perse illegal and, therefore, it has been prayed that the order of acquittal be set aside.
7. On the other hand, the learned counsel for the accused respondents has argued that the judgment and order passed by the learned Magistrate is correct one and it should not be interfered with.
8. Before proceeding further, it may be stated that on 31.1.2000 one of the Hon'ble Judge of this Court passed an order in this leave to appeal No. 23/2000 and the Hon'ble Judge observed that this file requires to be investigated by vigilance cell.
9. Vigilance Cell came to the conclusion that as per order-sheet, accused persons were responsible for delay caused in not appearing in the Court for nearly 4 years and 7 months and thereafter the accused persons got the benefit of dispensing with of their attendance on every date of hearing and thereafter Vigilance Cell came to the conclusion that the conduct of Shri N.C. Jain, Chief Judicial Magistrate who passed the order of acquittal dated 11.10.99 cast doubt about his integrity and the file was put up before Hon'ble Chief Justice and the Hon'ble Chief Justice passed an order on 3.5. 2000 in the following manner:
"Await result of appeal against acquittal. Also expedite hearing of appeal by fixing ft for early hearing bringing the facts to the knowledge of the Court."
10. The point for consideration is whether the order of acquittal passed by the learned Chief Judicial Magistrate can be justified or not.
11. From perusing the order sheets, it is very much clear that the accused persons remained absent and did not appear in the Court and on every hearing they got their personal attendance dispensed with and the Court also did not take any step to secure the attendance of the witnesses. Only three witnesses were ordered to be summoned and rest of the witnesses were never ordered to be summoned by the Court. Only two witnesses appeared on two dates, but their statements could not be recorded. In these circumstances, in my opinion, the order of acquittal cannot be justified.
12. Andhra Pradesh High Court in the case of (1) The Public Prosecutor v. Gundu Rao reported in 1976 Criminal Law Journal 1835 held that the prosecution witnesses if not produced, it is the duly of the Magistrate to take coercive steps to compel their attendance and acquittal on that ground was not justified.
13. Similarly Mysore High Court in the case of (2) The State of Mysore v. Kalilulla reported in AIR 1971 (Mysore) 60 has held that order of acquittal on the ground of non-appearance of prosecution witnesses cannot be justified. Similar view was taken by Kerala High Court in the case of (3) State of Kerala v. Gopalan reported in AIR 1962 (Kerala) 3. A Full Bench of Madras High Court in the case of (4) The State v. Veerappan and Ors. reported in AIR 1980 (Madras) 260 also took a view that acquittal of accused persons merely on the ground of non-production of evidence by the prosecution is not permissible.
14. In my view also in the administration of criminal justice, a duty is cast upon the Court to procure the attendance of witnesses though primarily responsibility of producing the witnesses is on the prosecution. The Magistrate should not feel helpless in such situation and should exercise its discretion to procure the attendance of witnesses. If the prosecution by its negligence or otherwise fails to discharge its responsibility in producting the witnesses, it is incumbent on the court to examine such witnesses as it considers necessary for the ends of justice.
15. Apart from that, as stated above, dereliction of duty on the part of learned CJM who passed the order of acquittal on 11.10.99 is clearly established and for the above reasons, the order of acquittal in the present case cannot be sustained and is liable to be set aside.
16. In my opinion, the order of acquittal should be passed only after taking evidence of prosecution, statement of accused, giving accused an opportunity to cross-examine the prosecution witnesses and lead his defence. All such things are absent in the present case. In these circumstances, the order of acquittal on the sole ground of absence of prosecution witnesses is illegal.
17. The result of above discussion is that judgment and order dated 11.10.99 passed by the learned Chief Judicial Magistrate, Hanumangarh are set aside and the case is remanded back for re-trial. The learned Chief Judicial Magistrate is directed to proceed in accordance with law and the parties are directed to remain present in the Court of Chief Judicial Magistrate, Hanumangarh on 16.5.2001. I further direct that the case should be disposed of expeditiously.
18. A copy of this judgment be sent to the Registrar General (Vigilance), Jodhpur.