STATE Vs. MADHAVAN NAIR

JUDGEMENT

(1.) This is an appeal by the State from an order of acquittal. The Respondent was prosecuted for offences under S.8 (i) j and 9 of Act XIII of 1950 and S.51 of Act II of 1952. The case against him was that he was found on the public road near Punnapuram Bhagavati Temple taking part in a drunken brawl at midnight on 6-11-1957. It is alleged that he had consumed alcohol and was behaving in a riotious manner in the company of three others. The Respondent pleaded not guilty and the First Additional Second Class Magistrate, Trivandrum before whom he was tried acquitted him. The main ground relied on by the learned Magistrate is that the Medical Officer who examined him soon after the incident and issued a certificate to the effect that he was smelling of alcohol was not examined by the prosecution.

(2.) The Respondent was not present at the hearing although he had accepted notice of the appeal. The only point pressed by the learned Public Prosecutor is that the learned Magistrate did not afford sufficient opportunity to the prosecution to examine the Medical Officer. The case came on for trial on several dates and it is seen from the diary that the Medical Officer accepted summons on 22-5-1958 but did not appear on the date of trial i. e. 4-6-1958. Summons was issued to him again through the Superintendent, General Hospital, Trivandrum and on 12-7-1958 the Superintendent returned the summons unserved stating that due to exigencies of service the witness could not attend court on that day. The prosecution pressed for his examination and summons was issued again on 19-7-1958 asking him to appear on 23-7-1958. This was also returned unserved and the Superintendent wrote to the Magistrate on 21-7-1958 stating that the witness had to sit for departmental examination commencing on 22-7-1958. As the witness did not appear on 23-7-1958 the learned Magistrate took up the case for disposal. I do not think that the court was justified in taking up the case for disposal without examining this witness. The summons issued was unserved and in the circumstances the court was bound to see that the witness appeared. It has to be observed that the Medical Officer concerned should have appeared to give evidence much earlier. Reference has already been made to the fact that he had accepted summons to appear on 4-6-1958 and that he failed to appear without assigning any cause. Officers of the Government like other citizens of the land are expected to respect and obey summons issued from courts. If official duties prevent them from appearing, they are expected at least to intimate that fact and explain their absence. The Medical Officer was one of the principal witnesses in the case and the disposal of the case without examining him is quite unsatisfactory. In these circumstances the order of acquittal must be set aside.