STATE OF MYSORE Vs. SHANTA ALIAS SAVITRI

JUDGEMENT

(1.) The State has filed this appeal challenging the legality and correctness of the order of acquittal passed by the Judicial Magistrate, First Class, Belgaum Cantonment, on 17-9-1970.

(2.) The complainant Mahadev Parashuram. Shahapurkar had filed information to the Police on 9-8-1970 that between 10 AM. and 7 PM. on 8-8-1970 somebody had entered into his house by opening the latch of the door and had committed theft of copper pots and sarees. The Police took up investigation and on the very next day, i.e., on 10-8-1970 arrested the respondent Shanta alias Savitri when she was in front of the shop of one dealer in old utensils and seized certain copper pots and sarees from a basket that was on her head. Then they put up a charge sheet against her alleging that offences under Ss.454, 380 or in the alternative under S.411, IPC. had been committed by her. The respondent-accused was also produced along with the charge sheet. The Magistrate saw that copies of documents referred to in S. 173 (4) CrPC. were furnished to the accused respondent and after perusing the papers, framed charges for offences under Ss.454, 380 or in the alternative under S.411 IPC. The accused-respondent pleaded not guilty. The Magistrate fixed the date for evidence as on 1-9-1970 and adjourned the case to that date. On 1-9-1970, the Assistant Public Prosecutor filed a memo requesting the Court to issue summons to the complainant and other witnesses. The learned Magistrate passed an order as follows:

(3.) On 1-9-1970, which was the first day fixed for trial of the case, the prosecution prayed for issue of summons not only to the complainant but also to the witnesses for the prosecution as is clear from the memo filed by the APP. on that day. The learned Magistrate directed issue of summons only to the complainant, probably through oversight. The order passed by the learned Magistrate on 1-9-1970 does not disclose that he did for any rason, reject the request of the Asst. Public Prosecutor to issue summons to the prosecution witnesses. That order, therefore, is not according to law. The learned Magistrate ought to have directed issue of summons to the prosecution witnesses also. The records show that even in spite of this order passed by the Magistrate, directing issue of summons to the complainant, no summons were actually issued either to the complainant or to any witness. In spite of that fact, the prosecution appears to have kept the complainant present on the next date of hearing, i.e., on 11-9-1970. The request made by the prosecution to issue summons to the prosecution witnesses also stood even on 11-9-1970 because the same had not been rejected by the learned Magistrate on 1-9-1970. In the result, it is manifest that the prosecution was not expected to keep the prosecution witnesses present without summons being issued to them. If the order passed bv the learned Magistrate on 1-9-1970 is construed to mean that the request for issue of summons to the prosecution witnesses was rejected, we are clearly of the oninon that the Magistrate could not have passed such an order on 1-9-1970, which was evidently the first day fixed for trial of the case. S.251A(7) states that on the date so fixed for trial (as provided in sub-sec. (6)) the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution........Production of witnesses by the prosecution can be by making a request for issuing summons to the witnesses or by the prosecution itself keeping the witnesses present without making a request for issue of summons. When the prosecution wants the Court to issue summons to its witnesses it is, in our opinion, incumbent on the Court to grant that request and direct issup of summons to the prosecution witnesses The learned Magistrate instead of acting in the manner narrated above, has acted in violation of the provisions of law in not directing issue of summons to the prosecution witnesses though such a request was specifically made by the APP. on 1-0-1970. Therefore, we are of the view that if) was not right on the part of the learned Magistrate to put the blame on the prosecution for not keeping witnesses present on 17-9-1970. That goes to show that the Magistral could not have closed the case for the prosecution and proceed to pass an order of acquittal under sub-sec. (11) of S.251A CrlPC.