Patna High Court
State vs Mangilal Ram And Anr. on 13 April, 1973
Equivalent citations: 1974CRILJ221
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT N.L. Untwalia, C.J.
1. In G. R. Case No. 1084 of 1965 a Judicial Magistrate at Chaibassa by order dated the 19th December, 1970 refused to adjourn the case further and to issue summonses to the prosecution witnesses at its instance. He closed the prosecution case and proceeded to examine the accused under Section 342 of the Code of Criminal Procedure hereinafter called 'the Code'. There were two accused and they had been charged of having committed embezzlement of Rs. 85/-. Thus, they are said to have committed offences under Sections 409 and 120-B of the Penal Code. The State applied to the Sessions Judge of Singhbhum at Chaibassa for making a reference to this Court under Section 438 of the Code. The learned 3rd Additional Sessions Judge, Chaibassa, on the basis of some decisions of High Courts thought that the order passed by the Magistrate was not justified in law. According to him, the learned Magistrate "had committed fatal irregularities in having not allowed the prosecution to have adduced evidence for which the Court had already issued processes and to have closed the case without waiting for service return and after calling for a fresh list of witnesses without having issued processes as prayed for."
In that view of the matter, the learned Additional Sessions Judge has recommended for quashing of the order of the learned Judicial Magistrate.
2. I shall state the facts of this case from the letter of reference, pointing out some inaccuracies here and there. The offence is said to have been committed in the year 1965. Chargesheet was submitted on the 9th June, 1967, and upon police report, cognizance was taken by the Sub-divisional Magistrate on the 10th July, 1967. He transferred the case to the file of Shri C. N. Singh, Munsif Magistrate 1st Class, Chaibassa. The case was later on transferred to the Court of Shri H. K. Bhattacharya, Judicial Magistrate 1st Class, Chaibassa from the Court of Shri C. N. Singh. After examining P. W. 1 on the 22nd December, 1969, Shri Bhattacharya was of the opinion that the case was such as was fit to be tried by him because it involved defalcation of a petty sum of Rs. 85/-. He did not think it necessary to proceed with the enquiry under Chapter XVIII of the Code and proceeded to try the case himself. Thereafter the next date fixed in the Case was 3-2-1970 for examination of the remaining prosecution witnesses. Because of their absence on that date the case was adjourned to 14-3-1970 and again to 29-4-1970 for the same reason on 29-4-1970 no prosecution witness was present. The case was adjourned to 30-5-1970 and a direction was given to the prosecution to bring its witnesses. Summonses were also directed to be issued to the prosecution witnesses. I may state one fact here. When I proceed to discuss hereinafter the law relating to the trial of warrant cases instituted on police report, I shall point out that it is not always necessary or incumbent upon the trying Court to issue summonses to the - prosecution witnesses unless and until prayer in that behalf is made by the prosecution. To resume the sequence of fact, on 30-5-1970 no prosecution witness was present and the prosecution was again directed to bring witnesses on 23-6-1970. It is not clear from this order whether summonses had been issued to or served upon the prosecution witnesses. Then, on the next date fixed, i.e. on 23-6-1970 the prosecution again failed to produce any witness. The learned Additional Sessions Judge has not stated one fact from the order-sheet of that date. What is recorded therein is that a petition was filed on behalf of the accused stating that the case had been fixed for hearing since long and the prosecution did not produce any witness so the accused may be discharged. After hearing this matter the learned Magistrate stated-
On perusal of the record it appears that the summonses were issued against the witnesses but the S. R. has been received after service. A. D. P. is directed to produce his witness on the next date, and office to send summons at once.
The A.D.P. was also directed to furnish fresh addresses of the witnesses within ten days. The case was adjourned to 6-8-1970. There are two confusions here. One is that when the summonses had been served why summonses were issued again is not clear. The direction to the A. D. P. to furnish fresh addresses of the witnesses within ten days was not complied with. The learned Additional Sessions Judge has said that this order does not appear to have been communicated to the A. D. P. I must state one matter here. When an order is passed on a date fixed in a case it is not incumbent upon the Court to communicate the order to the lawyer of a party, whether the party is the State or a private person. It is the duty of the lawyer concerned, whether he is the State lawyer or an Assistant District Prosecutor, to know what order has been passed by the Court on a date which was fixed in the case. There nothing to indicate that the A. D. P. was not aware of this order and, therefore he did not comply with it. The learned Additional Sessions Judge, in my opinion, was not justified in making a continent that because this order was not communicated to the A. D. P. therefore, per-haps, he could not comply with it.
3. Then, on 6-8-1970 one prosecution witness was present. But because the Court was engaged in some other work, the case was put up on 7-8-1970. On 7-8-1970 the witness present was examined and discharged. Thereafter, the case was adjourned to 2-9-1970. On this date, again, one prosecution witness was present. The case was called out and he was examined in chief and partly cross-examined. His examination was finished on 3-9-1970 and he was discharged. If I may make one comment here also, while appreciating the facts of the case it would be seen that in this petty case of embezzlement with which the accused were charged, how after long interval one witness was produced on one date and another oh another date. This was not fair to the accused to say the least. On this date, i. e. 3-9-1970 after disposing of a petition filed by the accused, the prosecution was directed to make an effort to bring other material witnesses on the next date, namely, 26-9-1970, to which the case was adjourned. On this date again no prosecution witness was present. A petition was filed on behalf of the prosecution to issue summonses to the prosecution witnesses who were all Government servants and to the doctor through the Director of Health Services, Bihar, Patna. This prayer was allowed arid summonses were directed to be issued fixing 14-11-1970 as the next date. It is not again clear as to whether the summonses directed to be issued on 6-9-1970 were issued or not and if issued, whether they were served or not. Be that as it may, on 14-11-1970 both the accused were present; but no prosecution witness was present. No statement had been made by the prosecution about the witness whom it intended to examine, It was directed to furnish a list of witnesses who were intended to be examined within ten days of the order. On the filing on such list by the A. D. P. summonses were directed to be issued to the prosecution witnesses fixing 19-12-1970 for evidence. The A. D. P. was directed to receive the summonses and set them served. On 19-12-1970 both the accused were present again, but no prosecution witness was present. Then the learned Magistrate said, that as per order recorded on 14-11-1970. the prayer of the prosecution for issuing summonses to the witnesses was conditionally allowed and summonses were to issue to such witnesses who would be pointed out by the prosecution to be material. The A. D. P. was directed to furnish list of such P. Ws. with their present addresses by 24-11-1970. He did not comply with that order and hence no summonses were issued. The case is of 1965 and out of thirteen P. Ws. cited in the charge-sheet, the prosecution had till then examined two witnesses only. The witnesses were all Government Officials including police officials and in spite of the efforts of the conducting officer as well as Government, attendance of the remaining witnesses could not be secured. Sufficient time had been given to the prosecution and considering that further adjournment would mean undue harassment to the accused persons, the prayer of the A. D, P. was refused. Then the learned Magistrate proceeded, as I have stated above, to examine the accused under Section 342 of the Code.
4. The question is : Whether the order of the learned Magistrate dated the 19th December, 1970 is contrary to law, or on the facts and in the circumstances of the case, fit to be quashed by this Court in the reference made by the learned Additional Sessions Judge?
5. Before the amendment made in the Code by. the Amending Act of 1955, the procedure for trial of warrant cases, whether instituted on police report or otherwise, was the same. The present Section 252 (2) was in the old Code also and applied to the trial of warrant cases instituted even on police report and by the amendment, that sub-section has been retained only for the trial of such warrant eases which are instituted otherwise than on a police report. The procedure prescribed for the trial of warrant cases instituted on police report is to be found in Section 251-A. It would be seen that a provision like Section 252 (2) is not contained in any sub-section of Section 251-A. On the other hand, Sub-section (7) of Section 251-A says:
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.
On consideration of the above provision of the Code, divergent views have been expressed by various High Courts. Views on two extremeties are to be found and balancing views have also been expressed. Some of the cases have taken the view that because of the clear distinction in the language of the procedure prescribed in Section 251-A and Section 252, the Court has no duty or obligation to summon any witness even if asked by the prosecution if the case is instituted on a police report. Some of the cases have gone so far as to say that it is the duty of the prosecution to produce witnesses and the Court is not bound to help the prosecution in getting production of the witnesses. The other extreme view ex-pressed in some cases is that it is the duty of the Court to summon prosecution witnesses if asked by the prosecution, and if on service of summons a witness does not appear, it is the duty of the Court, as I read the cases, meaning that it is imperative for the Court to take all possible measures to compel their attendance including issuance of warrants of arrest. In some cases the view expressed is that even if the prosecution fails to produce any witness, the Court has got power and a duty is cast upon the Court because of that power under Section 540 of the Code, to summon witnesses to arrive at the truth and decide the case on the evidence of witnesses summoned under Section 540 of the Code, In my opinion, neither of the two extreme views is correct, and I say so with utmost respect. The correct position of law in this regard is that in a warrant case instituted on police report, the primary duty is of the prosecution to produce witnesses; but since the prosecution which is the State or the Public Prosecutor has no power or machinery to compel attendance of the witnesses, it is fully justified in seeking the help of he Court for their production. Help of he Court may be asked for by praying to the Court to issue summonses to the prosecution witnesses. If after service of summons a witness does not appear, the prosecution may ask the Court to issue warrant of arrest But unless such a prayer is made, it is not the duty of the Court either to issue any summons to the prosecution witnesses or to issue warrant of arrest if a prosecution witness does not appear even after service of summons. I must hasten to add that there is a difference between 'power of a Court' and 'duty of a Court'. Even if the prosecution does not make a prayer for issue of summons or for issue of warrant of arrest in a given case, the power is there, as some of the cases have said, under the general powers, of the Court, meaning thereby the inherent power of the Court, or such power to issue summonses may be spelt . out under Section 540 of the Code and the power to issue warrants of arrest is surely there under Section 90 of the Code. It may be exercised suo motu or may be exercised on being asked to do so. But then to say that even if the prosecution is negligent or does not make a prayer to issue summonses or to issue warrants of arrest, it is imperative for the Court to follow sub motu the prosecution witnesses like a prosecutor, to say the least, is not justified. It is also not correct to say that it is not the duty of the Court to issue summons or warrant of arrest when the prosecution asks the Court to do so. But ordinarily and generally, unless there are special reasons to refuse the prayer, it is the duty of the Court, meaning thereby, it is imperative for the Court to allow the prayer of the prosecution to issue summons or to issue warrant of arrest, as the case may be. The Court may refuse to do so, if it finds that the prosecution is guilty of remissness or laches. But then the Court cannot refuse this prayer merely because, Sub-section (7) of Section 251-A does not provide for this.
6. If on the facts and in the circumstances of a case the Court finds that the prosecution has not been able to produce its witnesses even if the helping hands of the Court were extended to it, then it is justified, rather it will be its duty in a hard case where the accused has been harassed to attend the Court on many dates, to close the prosecution case and proceed to conclude the trial in accordance with law as provided in various sub-sections of Section 251-A after Sub-section (7),
7. In this connection it would be of some use to make reference to Sub-section (2) of Section 207-A of the Code which prescribes the procedure for holding committal inquiry in cases instituted Upon police report. There it provides that if at any time the officer conducting the prosecution applies to the Magistrate to issue processes to compel attendance of witnesses, the Magistrate is bound to issue such processes unless, for reasons to be recorded, he deems it unnecessary to do so. Since Chapter XVIII of the Code relates to commission of serious offences, the Legislature has taken precaution in casting a duty in express language on the Magistrate to issue summonses when asked to do so by the prosecuting officer. But then it does not mean that the Magistrate can whimsically or without any rhyme or reason can refuse to issue summons when asked by the prosecution to do so in a warrant case instituted on a police report. The procedure prescribed in Sub-section (2) of Section 207-A for holding enquiry in cases instituted on police report is almost identical to the procedure prescribed in Sub-section (3) of Section 208 for holding such enquiry in a case instituted otherwise than on police report. The distinction, therefore, made by the Legislature in the procedures prescribed under Section 251-A and Section 252 has got significance no doubt, but not to the extreme extent to which some of the cases have gone. It is, however, necessary to emphasise that this distinction must be borne in mind by prosecutors in cases instituted on police report. They must realise that it is their primary duty to produce witnesses or to seek their production if they do not come on their request. It is not the duty of the Court to pursue the witnesses and get them produced in Court.
8. I may make reference in this connection only to a few cases. In Sm. Jyotirmoyee Bose v. Birendra Nath a Bench of the Calcutta High Court expressed the view that In a case tried under Section 251-A of the Code, the Magistrate was not compelled as he was if the case was tried as a warrant case instituted other than on the police report to proceed in terms of Sections 256 and 257 of the Code.
I respectfully strike a note of dissent from this proposition of law laid down so baldly. In Paban Chandra Majumdar v. Dulal Ghosh a learned single Judge, after referring to the Division Bench decision of the Calcutta High Court in Jyotirmoyee Bose's case, has observed-
From this decision it appears that if any application on behalf of the prosecution is made for the purpose of issuing process upon the witnesses the Magistrate may in his discretion accede to the prayer made by the prosecution and when once such a prayer is accepted it is the duty of the Magistrate to see whether the order as passed by him has been carried out or not.
Largely I am in respectful agreement with this view. In Public Prosecutor, Andhra Pradesh v. Pachiyappa Mudaliar a learned single Judge of the Andhra Pradesh High Court differed from the Calcutta Bench decision in Jyotirmoyee Bose's case and said:
Once the Magistrate takes cognizance of the case, I think it becomes his bounden duty to go to the root of it and do justice in the matter. The Criminal Procedure Code has given very wide powers to the Magistrate only with a view to clear any possible obstacle in the way of the Magistrate to do justice in a case. Taking cognizance of a case means that the Magistrate prima facie is satisfied that the offence has been committed and in such a situation it is necessary for the Magistrate to find out who the culprit is and in this process he must adopt every method available to him under law for coming to some decision. If the prosecution is slack and neglectful in its duties, it does not follow that the Magistrate should also fall in line with it. If the persons conducting the prosecution feel disinclined to conduct the prosecution, in that case they can very easily get their cases dismissed by mere default. In this view, I think, if the Assistant Sub-Inspector of Police had failed to produce the witnesses on the date of hearing, it was for the Magistrate to compel their attendance to dispose of the case according to law. I think the Magistrate should exhaust all his powers before he makes up his mind to dismiss the case.
With utmost respect I should say that this is asking the Court not only to decide cases, but in a sense to act as Prosecutor of the accused also. Certainly this is not the spirit of the procedure prescribed for trial of cases in Court, specially in regard to trial of warrant cases instituted upon police report. In State of Mysore v. Kaliulla Ahmed Shariff AIR 1971 Mys 60 : 1971 Cri LJ 226 it has been stated by Santosh, J., with whom Range-gowda, J. seems to have agreed:
We may also point out that under Sub-clause (2) of Section 207-A of the Code of Criminal Procedure it is the duty of the officer conducting the prosecution to apply to the Magistrate to issue process to compel the attendance of any witness. Section 208 (3) of the said Code also lays down that in proceedings instituted otherwise than on police reports, it is the duty of the complainant or the officer conducting the prosecution or the accused to apply to the Magistrate to issue process to compel the attendance of any witness. There is no such obligation cast under Section 251-A (7) of the Criminal P. C. on the prosecution to apply for process to the witnesses. There is, therefore, no force in the contention advanced by Mr. Swamy that it is the duty of the prosecution to apply for summons to the witnesses they proposed to examine in the case.
This distinction to my mind, and I say so with utmost respect, is not correct. The difference in the language of Sub-section (2) of Section 207-A and Sub-section (7) of Section 251-A is not for the purpose of casting duty on the prosecution in the former case to apply for issue of summons and in the latter not to apply for issue of summons; rather as I have pointed out above the difference in the language is for a different purpose. On the basis of the view expressed in the passage extracted above, the learned Judge proceeded to hold that after all the Court has to find the accused not guilty and then only acquit him under Sub-section (11) of Section 251-A, and the word 'finds' casts a duty on the Court to try the case after obtaining production of witnesses. If the prosecution is guilty of laches, if the prosecution does not produce its witnesses nor makes a prayer to the Court in time for obtaining their production through the agency of the Court, then the Court has no duty to follow the witnesses to find out the truth. In absence of evidence to record a finding of not guilty will also be a justified finding under Sub-section (11) of Section 251-A. In State v. Nandkishore there seems to be some observation indicating that if the prosecution fails to produce witnesses, then it is the duty of the Court to take recourse to its powers under Section 540 of the Code. I do not, as I have already said, subscribe to this view, In the State of Bihar v. Polo Mistry G. N. Prasad, J. sitting singly, stated:
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 attendence 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.
With utmost respect I do not find myself in full agreement with the view expressed by the learned Judge. I am of the opinion that even where the prosecution has undertaken to produce its witnesses, but finds itself unable to produce any on a subsequent date, it may seek the help of the Court for securing their attendance, and if the prosecution has applied to the Court for issue of summons, then surely, it is the duty of the Court to see that its order of issuing summons and service of it is carried out. But once it is carried out, thereafter it is not obligatory for the Court to secure attendance of the witnesses by issuing warrants of arrest against them until asked for by the prosecution. It may do so, as I have already stated, but it is not imperative for it to do so. The view expressed by Gurdev Singh, J., with whom Capoor, J. agreed in State v. Kali Ram AIR 1968 Punj 87 : 1968 Cri LJ 369 if I may say so with respect, seems to be very reasonable and just and the proper view to be taken in relation to the trial of a warrant case instituted upon police report. The balancing view, if I may say so, which I have expressed above finds ample support from the judgment of Gurdev Singh, J., who has, if I may again say so with respect, elaborately discussed the various divergent views of different High Courts and has taken the view with which I find myself almost in full agreement.
9. Applying the principles of law enunciated above to the facts of this case, it has to be noticed that the accused persons were being harassed on many dates. The prosecution was not able to produce its witnesses. Summonses were issued to the witnesses, but still the witnesses were not attending the Court. And the prosecution was not informing as to why the witnesses were not attending. In the petition filed on 19-12-1970, which has been placed before us, the A. D. P. had not stated that he had no knowledge of the order dated 14-11-1970. The direction given to him to comply with the order within ten days of the order was not complied with. He at his leisure, as it appears, proceeded to comply with that direction on 19-12-1970. In such a situation, and on the facts and in the circumstances of the case, if the learned Judicial Magistrate closed the prosecution case and proceeded with the trial, he committed neither any irregularity nor any illegality and his order is not fit to be set aside. The reference is, therefore rejected and the rule is discharged.
S. Sarwar Ali, J.
10. I agree.