Patna High Court
The State Of Bihar vs Polo Mistry And Ors. on 14 February, 1963
Equivalent citations: AIR1964PAT351, 1964CRILJ175, AIR 1964 PATNA 351, 1963 BLJR 558
JUDGMENT G.N. Prasad, J.
1. This is an appeal by the State Government against an order of acquittal recorded by the learned Judicial Magistrate under Section 251-A(11) of the Code of Criminal Procedure. The circumstances in which the order under appeal came to be recorded are, briefly, these.
2. On the basis of a police report, the respondents, who are 22 in number, were summoned to take their trial for offences under Sections 147, 148, 448, 325 and 324 of the Indian Penal Code. The case was transferred to the learned Judicial Magistrate, Mr. M. Mustafa, for trial. On the 13th June, 1961, the learned Magistrate framed charges against the various respondents under Sets. 147, 148, 323, 324 and 325/34 of the Indian Penal Code, to which the respondents pleaded not guilty. On the same day, the learned Magistrate ordered sommonses to be issued for the appearance of the prosecution witnesses on the 17th, 18th and the 19th July, 1961, in equal batches. No prosecution witness, however, appeared in response to the summons on any of these three dates, in spite of the fact that the service report of the summonses had been received. On the 19th July, 1961, the learned Magistrate proceeded to acquit the respondents under Section 251-A(11) of the Code of Criminal Procedure, on the ground of want of evidence against them.
3. The point for consideration is whether, in the circumstances of the case, the Learned Magistrate was justified in recording the order of acquittal as aforesaid It seems to me that there is some misapprehension in the minds of some Magistrates as to the true scope of Sub-section (7) of Section 251-A, newly introduced in the Code of Criminal Procedure under the amendment of 1955. The aforesaid sub-section enjoins upon the Magistrate to take all such evidence as may be produced in support of the prosecution on the date fixed for the examination of the witnesses. This is taken as implying that it is the sole duty of the prosecution to produce the prosecution witnesses upon whose evidence it proposes to rely in support of its case. But it is sometimes overlooked that in order to be in a position to produce the evidence in support of the prosecution, the prosecution may either undertake to produce the prosecution witnesses through its own agency or secure their attendance in court through the agency of the Court. Where the prosecutor has himself undertaken to produce the prosecution witnesses, the entire responsibility for production of the evidence in support of the prosecution case is that of the prosecutor. But where the prosecutor has taken recourse to the agency of the Court for securing the attendance of the prosecution witnesses, upon whose evidence he proposes to rely in support of his case, it is, undoubtedly, the duty of the Magistrate to take steps for securing the attendance of the prosecution witnesses in his Court. In such a case, it cannot be held that the entire responsibility for securing the attendance of prosecution witnesses lies upon the prosecutor alone. It is only where the prosecutor finds himself unable to produce the prosecution witnesses through his own agency that he relies upon the agency of the Court for securing the attendance of the prosecution witnesses. In such an event, it is the obvious duty of the Magistrate concerned to take all such measures as may be found necessary under the law to compel the attendance of the prosecution witnesses.
4. In the instant case, the prosecutor had relied upon the agency of the Court for securing the attendance of the prosecution witnesses. It was not left to the prosecutor himself to produce the prosecution witnesses tor their evidence at the trial. The learned Magistrate had ordered summonses to be issued for the appearance of the prosecution witnesses in equal batches for three different dates. The service return of the summonses had also been received back against 15 prosecution witnesses. If, thareafter, none of the prosecution witnesses turned up in response to the summons of the Court, then it was the obvious duty of the learned Magistrate to have taken steps to compel their attendance by issuing warrants of arrest against them in accordance with Section 90 (b) of the Code of Criminal Procedure. It is apparent that the prosecution witnesses had failed to appear in court in spite of service of summonses upon them and there was no material before the learned Magistrate to indicate that there was any reasonable excuse for the failure of the prosecution witnesses to appear in response to the summonses of the Court The order of the learned Magistrate shows that the Assistant District Prosecutor in charge of the prosecution had made a prayer before him for issue of warrants of arrest against the prosecution witnesses, but this prayer was unjustifiably refused on the ground that the prosecution witnesses were "reluctant to attend court". The learned Magistrate also took the view--
"The accused persons are being prosecuted for certain mistake committed by them and now when prosecu- tion has committed the mistake, I think it will be sheer injustice to deny advantage of it to them".
In my opinion, the reasonings of the learned Magistrate are wholly erroneous and misconceived. In the circumstances of the case, the obvious course which the learned Magistrate should have followed was to have taken steps to compel the attendance of the witnesses for giving their evidence in the case. It was quite wrong for the learned Magistrate to have proceeded to acquit the respondents on the footing that there was no evidence against them. The order of acquittal cannot, therefore, stand.
5. I, therefore, set aside the acquittal of the respondents and send the case back for disposal according to law.
6. The appeal is thus allowed.