Madhya Pradesh High Court
Nathibai D/O Teja Patel vs Bhura Alias Atal Bihari S/O ... on 29 August, 1991
Equivalent citations: 1991(0)MPLJ952
ORDER K.L. Issrani, J.
1. The present revision petition is against the order dated 17-7-1989, passed by the Sessions Judge, Panna, in S.T. No. 70/89 acquitting the non-applicant No. 1 because of the non-attendance of the remaining prosecution witnesses.
2. The brief facts are that the police of police station, Devendranagar filed a challan against the non-applicant No. 1 on the basis of complaint lodged by the applicant Under Section 376, Indian Penal Code. The trial programme was submitted by the prosecution. The trial was fixed for prosecution evidence on 7-3-1989 to 9:3-1989. On 7-3-1989 since the Presiding Officer was on leave, therefore, the trial was adjourned to 2-5-1989 to 4-5-1989. On 2-5-1989 because of non-issuance of summons the trial was again adjourned and fixed for 22-6-1989, 23-6-1989 and 24-6-1989. On 22-6-1989 prosecurix Nathibai was examined. On 23-6-1989 the prosecution witnesses Ku. Anil, Sahodrabai, Sheopratap Singh Constable, Harilal and one Gopal Prasad were examined and cross-examined. On 24-6-1989, Dr. D. C. Mahadik and Babulal Patwari were examined and cross-examined. One witness Ramkhilavan was given up by the prosecution. Prosecution filed an application for examining remaining witnesses. The application of the Public Prosecutor for issuing summons to remaining prosecution witnesses, Sukhendra, Ramlakhan, Raghuraj Singh, Ramprem Constable, R. S. Parihar, Sub-Inspector and Dr. (Smt.) Kamlesh Oza was allowed. It was ordered by the Court that the summons be issued to these witnesses. The case was then fixed for examination of these witnesses on 17-7-1989. On 17-7-1989, no witness was present because summonses were not issued by the Court, but the Court closed the prosecution case on the ground that sumonses were not taken by the prosecution and the prosecution witnesses were not served. The prosecution case was closed and was fixed for orders on 21-7-1989. The applicant-prosecutrix immediately came up before this Court on 20th July, 1989. The revision petition was admitted by this Court and further proceedings before the lower Court were stayed. This stay order was confirmed subsequently on 16-10-1989.
3. The submission of the learned counsel for the applicant is that it is duty of the Court to have issued the summonses. In case, the witnesses do not attend the coercive process ought to have been issued, the Court ought not to have closed the prosecution case when important prosecution witnesses remained to be examined.
4. The non-applicant No. 2 State though has not filed any revision, but fully supports the submission of the applicant.
5. The submission of the learned counsel for the non-applicant No. 1 is that the prosecution was negligent in not getting the summonses issued and the case was adjourned earlier also for want of prosecution witnesses.
6. Having heard the submissions of the learned counsel for the parties and after perusing the order-sheets of the Court below, I am of the view that this revision petition deserves to be allowed. For better distinction, Section 230 of the Code of Criminal Procedure, 1973 is reproduced below : -
"230. Date for prosecution evidence. - If the accused refuses to plead, or does not plead, or claims to be tried or is not convicted Under Section 229, the Judge shall fix a date for the examination of witnesses, and may, on the application of the prosecution, issue any process for compelling the attendance of any witness or the production of any document or other thing."
7. Earlier such provision was Under Section 251-A of the Old Code, 1898. The relevant extract is as under :
"251A. Procedure to be adopted in cases instituted on police report.
(1)-----------------------------
(7) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution :
Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined, or recall any witness for further cross-examination."
8. The provision of Section 230, Criminal Procedure Code is new. It now casts duty upon the Court to fix the date of prosecution evidence and also issue any process for compelling the attendance of witnesses on the application of the prosecution. Earlier the prosecution was required to produce the evidence sought to be examined, which is not so in the new provision. The word "Produced" in Sub-section (7) of Section 251-A of the Criminal Procedure Code, 1898 has been interpreted by this Court in State of M.P. v. Raghuvanshi, 1972 JLJ S. No. 84, wherein it has been held that it is true that Sub-section (7) of Section 251-A of Criminal Procedure Code provides that the Magistrate shall proceed to take all such evidence that may be produced in support of the prosecution and none of the sub-section of Section 251-A expressly provides for issue of summons to the witnesses for the prosecution at the instance of the prosecutor. But from the very absence of specific provision in Section 251-A of Criminal Procedure Code with regard to summoning the prosecution witneesses at the request of the prosecution, it was held that it cannot be inferred that the Court has no power to summon the prosecution witnesses or that if the Court had issued summons for the examination of such witness. The procedure adopted by it in closing the case was held to be illegal.
9. It is not correct to say that the prosecution was in any way negligent or had been seeking adjournments as submitted by the learned counsel for the non-applicant No. 1. As submitted above, once the Presiding Officer was absent. On the other date the case was also adjourned because Court failed to issue summons to the witnesses. Even without entering into that dispute, it is, however, clear that on 24-6-1989 Dr. D. C. Mahadik and Babulal Patwari were examined and one witness Ramkhilavan was given up. For the remaining witnesses an application was filed by the Public Prosecutor to summon the prosecution witnesses.The Court had allowed the application. It was duty of the Court to have issued the summons itself. It was none of the duties of the prosecution to collect the summons from the Court. The lower Court was, therefore, wrong in holding that the prosecution failed to produce the evidence. In the new provision of Criminal Procedure Code, there is no such word like "Produced" as in Sub-section (7) of Section 251-A of the Code of Criminal Procedure, 1898. It is, therefore, the duty of the Court itself to fix the date and issue summons compelling the attendance of the witnesses for that date. The order is, therefore, apparently illegal and set aside.
10. The revision petition is allowed. The case is remanded back to the trial Court with the direction to issue summon to the remaining witnesses prayed for and if need be compelling process be issued to the witnesses for an early date to be fixed by the Court and decide the matter thereafter on merits.