Gauhati High Court
Ahmed Ali vs State Of Assam And Ors. on 21 November, 1989
Equivalent citations: 1990CRILJ1041
ORDER B.P. Saraf, J.
1. This application has highlighted a very disquieting feature of the administration of criminal justice in the trial Courts. In this case, the Sub-Divisional Judicial Magistrate, Morigaon (hereinafter 'the Magistrate') by order dated 24-11-83 closed the criminal case and acquitted the accused persons from the charge under Sections 147/323/324/326 of the Penal Code as he found that the non-bailable warrant against the witnesses had not been returned after service. The following observation was made in the order:
"It is unfortunate that the police officers consider the submission of the charge-sheet as completion of their duty. Neither any memorandum in connection with the completion of service of warrant, notice and summon sent from the Court to the police station is returned to the Court nor they are returned with the reasons for non-service of the same. For such difficulty many cases have to be just closed after completion of procedure."
2. The aforesaid order has been challenged by the petitioner Ahmed AH who was informant in the instant case. The victims were his sisters and nephews. The case of the petitioner is that no process was ever served on the witnesses who were ready and willing to help the cause of administration of justice by giving evidence in the Court but failed to do so on account of non-receipt of any process or notice from the Court.
3. I have heard the learned counsel for the petitioner Mr. A. C. Bora as well as the learned Public Prosecutor. So far as the observations made by the learned Magistrate in regard to delay in service of summons and warrants by the police is concerned, there is no denial that such delays do very often occur. This Court can even take judicial notice of it. The Law Commission of India found it as back as in 1969 and in its Forty-First Report observed as follows:
"It is a standing complaint that there is a great deal of avoidable delay in the service of summons and that the execution of coercive processes is often unsatisfactory. Improvements in this regard can only be effected by administrative action and there is little that can be achieved by amendment of the law".
4. The prevailing situation in Assam in this regard was studied by the Assam Police Commission. In its report submitted in the year 1971, it observed:
(i) During our tour to various districts, we heard a lot of complaints from the Magistrates and members of the Bar about unsatisfactory process service by police officers. They pointed out that owing to dilatory and defective process service, expeditious trial of cases is considerably handicapped.
(ii) When we questioned police officers about the matter, they expressed their difficulty due to shortage of staff and the enormous increase in the volume of processes which are required to be dealt with by them.....
(iii) It is clear..... that the work relating to process serving is very heavy and the police station staff have also to shoulder the responsibility for execution and service of processes pertaining to complaint cases as also cases sent up by the Excise, Forest, Supply and other departments....."
The Commission made the important recommendations with the view to streamline the existing procedure of process service. One of the recommendations was that Senior Police Officers should be entrusted with the responsibilities of exercising strict supervision on process serving work and taking prompt action against defaulting Thana Staff whenever any instance of inordinate delay is brought to their notice by trying Courts.
5. In 1978, the Law Commission of India in its Seventy-Seventh Report on "Delay and Arrears in Trial Courts" again made some concrete suggestions to avoid delay in service of processes and ensuring the presence of the witnesses on the date of hearing. It observed:
"It seems to us desirable that at least two police officials at every police station should be set apart for getting service effected upon witnesses for cases relating to that police station and for ensuring their presence on the date of hearing.....".
6. The Law Commission rightly observed that wrongful acquittals are as undesirable as wrongful conviction as both shake the confidence of the public in the administration of justice. It observed:
"It is commonly said that the investigating agency now-a-days is not able to devote as much time as it should do to criminal cases pending in Courts because the police which constitute the investigating agency is overburdened with manifold other duties including those relating to maintenance of law and order. We are of the view that those officials of the police force who are concerned with the investigation of cases should, as far as possible, concentrate upon investigation and looking after the progress of the cases even after they are filed in Court. They should not, as far as possible, be deputed for other purposes. Piecemeal recording of evidence and delaying the disposal of cases undoubtedly causes hardship to the accused, but more than that, it results quite often in wrongful acquittals, Wrongful acquittals are as undesirable as wrongful convictions. Both shake the confidence of the public in the administration of justice. The beneficiaries of wrongful acquittals are undoubtedly the anti-social elements. It is plain that wrongful acquittals would give incentive and provide encouragement to criminals and the enemies of society".
It recommended:
"It may have to be considered in the above context as to whether it is not desirable to separate the investigating agency of the police from that dealing with general problems relating to maintenance of law and order. An investigating agency not burdened with other duties would not only ensure prompt and efficient investigation of crime; it would also help in the quick disposal of Court cases and prevent miscarriage of justice......".
7. Despite the aforesaid reports and recommendations made from time to time during the last two decades, the unsatisfactory state of affairs in regard to delay in process-serving persists. No steps appear to have been taken by the administration to improve the situation. The situation has rather worsened. There are more delays now in the disposal of criminal cases, there are more wrongful acquittals -- acquittals without trial on the ground of non-appearance of witnesses. Such ever-increasing delays in disposal of criminal cases and wrongful acquittals have definitely shaken the confidence of the people in the existing system of administration of justice. It is really travesty of justice to allow persons charged with commission of serious offences to get scot free because of failure of the process-service machinery. Such acquittals deprive the law of much of its effectiveness and are repugnant to the basic concept of criminal justice.
8. It is really distressing to note the apathy of the Government in this regard. During the last two decades the Law Commission of India, the Assam Police Commission and very many similar other high powered bodies had commented upon the unsatisfactory working of the police department in regard to service of processes, identified the causes, pointed out its serious consequences and derelictus effects on the administration of criminal justice and recommended remedial measures. But all that appears to have simply gone to add to the existing literature on the subject and failed even to provoke any thinking not to speak of action. The natural consequence is loss of the confidence of the people in the existing system of administration of justice. A sense of frustration prevails. There is growing tendency in a section of the people to take the law in their own hands. Such a tendency, undoubtedly has far reaching implications and remifications for a vast democracy like ours which is governed by the rule of law. It is high time that the Government rise to the occasion and take remedial action before it is too late.
8A. Now I propose to deal with the other side of the picture of administration of criminal justice highlighted by this case which relates to the functioning of Magisterial Courts. Under the Code of Criminal Procedure, a Magistrate has been vested with the widest possible powers the object being to enable him to carry out his duties effectively and to administer justice. He has been empowered to issue summons to a witness directing him to attend the Court. He has been also vested with the powers to issue even a warrant of arrest to compel the attendance of a witness if he is satisfied that the summons has been neglected. However, from the scheme of the Code and the various provisions contained therein, it is abundantly clear that for requiring the attendance of a witness issue of summons is the rule. Issue of warrant is an exception to that rule. The form of summons is prescribed in the Second Schedule to the Code. It is Form No. 33. The Magistrate concerned has to issue summons in the prescribed form in time and ensure its service on the person concerned. Till a summons is served on a witness, he cannot be charged with any neglect which might justify issue of warrant. If despite the orders of the Magistrate, no summons had been issued from the Court, or if issued, had not been served on a witness, the witness cannot be blamed for that. No coercive measure, therefore, can be taken against a witness in such a situation nor a case be closed and accused persons acquitted for non-appearance of the witness. This is a case where no summons were issued at all from the Court not to speak of service on the witnesses.
9. Before I deal with the impugned order and the salient provisions of the Code in this regard, it may be appropriate to give a brief synopsis of the orders passed by the learned Magistrate on different dates leading to the passing of the impugned order closing the criminal case and acquitting the accused persons. We may first refer to order passed on 26-7-83. By that order, the learned Magistrate ordered issue of summons to the witnesses fixing 29-8-83 for appearance. No summonses were issued in compliance to the said order. On 29-8-83 when the case was put up, another order was passed fixing 24-9-83 for appearance of the witnesses. Nothing was mentioned about non-issue of summons pursuant to the earlier order nor any direction was issued for issue of fresh summons. On 24-9-83 when the Magistrate found that the witnesses were not present, he ordered issue of summons fixing 25-10-83 for appearance of the witnesses without even looking into the records to note or to ascertain the fate of his earlier orders. Surprisingly, despite the third order, summons were not issued by his own office. In the routine manner, the case was put up before the Magistrate on the next date on 25-10-83. On that date also, the witnesses were not present evidently because of the fact that no summons had even been issued not to speak of service. But surprisingly, the Magistrate instead of taking note of such serious failures or total non-functioning of his own office, ordered issue of non-bailable warrants of arrest against all the witnesses including a woman. Non-bailable warrants, however, were issued this time. It was signed by the Magistrate on 29-10-83 and issued by the office to the police on 7-11-83 who received the same on 9-11-83. The date fixed was only a fortnight thereafter, that is, on 24-11-83. A day before the date fixed that is on 23-11-83, the non-bailable warrants were returned unexecuted with the remarks that the witnesses mentioned in the said warrants could not be traced. Next day on 24-11-83, the Magistrate passed the impugned order blaming the police officers for their negligence, closed the case, and acquitted the accused persons.
10. The aforesaid brief synopsis of the relevant facts of the case presents a very grim picture of the "judicious working" of the Magisterial courts. This is not a case of failure of the police to serve the summons or warrants as depicted in the impugned order. It is, in fact, a glaring example of deteriorating standards of administration of justice in the trial Court and growing inefficiency and irresponsibility and mechanical functioning of the Courts. The power of issuing summons and warrants is a judicial power and has to be exercised judiciously by the Magistrate himself on consideration of the facts and circumstances of the case. Such judicial powers cannot be exercised in an arbitrary, perfunctory or cavalier manner nor their exercise left to the Bench Assistants. We are to take a serious view of such cases and exercise strict supervision and control as otherwise the life and liberty of the people may be in peril.
11. I am, therefore, of the opinion that it is high time that the working of the Magisterial Courts is carefully scrutinised, supervised and any instance of reckless and arbitrary action taken by a Judicial Officer in flagrant violation of legal principles and judicial norms strictly dealt with.
12. As in this case, non-bailable warrants were issued against the witnesses, which in my opinion, was not proper and legal. I feel it necessary to briefly discuss the law in regard to the issue of processes to compel the attendance of witnesses. As indicated above, the normal rule is issue of summons to a witness. The summons must be strictly in the form specified in the Code. The mode of service of summons has been specified in Sections 62 to 69 of the Code. Section 62 provides that every summons shall be served by a police officer, or subject to such rule as the State Government may make in this behalf, by an officer of the Court issuing it or other public servant, if practicable, personally on the person summoned. Where it is not practicable the other modes of service laid down in the Code might be adopted. Section 69 of the Code also provides for service of summons on a witness by post in addition to or simultaneously with the issue of summons in the usual way to avoid some delay in the service of summons on witnesses.
13. If in spite of service of summons a witness does not turn up, the Court may take resort |o provision of Section 87 of the Code and issue warrant of arrest against him. Section 87 also lays down certain conditions which must be fulfilled before a warrant is issued. It reads:
"87. Issue of warrant in lieu of, or in addition to, summons.-- A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest --
a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or
b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure".
14. This section thus requires that a warrant should not be issued unless the Court is satisfied that summons had been duly served in time to admit of his appearance in accordance therewith and no reasonable excuse is offered for such failure. The power to issue warrant of arrest against a witness thus depends on the service of summons. It is only when summons is served and the witness neglects to appear that warrant may be ordered to be issued. The object is clear. A warrant should not be issued where summons would suffice. The Court should exercise due care to satisfy itself, upon the materials before it, that it was really necessary to issue a warrant.
15. However, before issuing warrant, it is also obligatory on the part of the Court to record its reasons in writing for issuing the warrant for arrest of a witness in lieu of summons. "Recording of reasons, in writing" is an essential requirement for exercise of the power to issue warrant. To ensure judicious exercise of this power this section contains the statutory requirement of recording the reasons in writing before issue of a warrant for arrest of a witness in lieu of summons. Recording of reasons in writing is thus an important step in the matter of issue of a warrant under this section and it has to be scrupulously followed in letter and spirit. If this essential requirement is ignored, it cannot be said that the issue of warrant was in accordance with law.
16. In the instant case none of these requirements was present not to speak of reasons. Even the records do not disclose any material which might indicate existence of the conditions which justifies issue of non-bailable warrant in lieu of summons. It appears that either the learned Magistrate, in the instant case, was totally ignorant of the relevant provisions contained in the Code which regulate the exercise such powers or was absolutely negligent or callous to understand the seriousness and implications of his actions. Either way, his action cannot be justified. There was no justification whatsoever for closure of the case and acquittal of the accused persons. In such circumstances, the impugned order cannot be said to be a lawful order.
17. The only point left for decision is the nature of order that should be passed in this case at this stage by this Court. In this connection, it is necessary to refer to the submissions of the learned Public Prosecutor. We stated that the incident took place in the year 1981. Long period of 8 years has elapsed. The case stood closed by virtue of the impugned order passed on 24-11-83. It will serve no fruitful purpose at this stage to revive the case and to start the trial afresh. I have considered the submission of the learned Public Prosecutor. I find force in it. No doubt, injustice was once done to the victims by the impugned closure of the case and acquittal of the accused persons without trial by the impugned order. However, if fresh trial is ordered, it will now cause injustice to the accused persons who appeared before the Court and were present on the different dates during the period of one and a half years and were acquitted as back as in 1984 by the Court. Under the circumstances, I am of the opinion that it will be just and proper not to pass any order for fresh trial of the case and to allow it to remain closed.
18. The petition is accordingly disposed of with the aforesaid observations.