STATE OF GUJARAT Vs. BAVA BHADYA

JUDGEMENT

(1.) The charge- sheet cited besides Sukha Rayla and Kali 8 other persons as witnesses. The charge-sheet also stated that summons should be issued by the Court to ensure the presence of the complainant and the witnesses. Before the charge was framed notices were issued by the Court on the 18th June 1960 calling upon the two accused to remain present. Accused No. 1 who was arrested was produced before the Court whereas accused No. 2 remained present with her surety. The case was then adjourned to the 22 June 1960 when copies of the papers relied upon by the prosecution were furnished to the two accused and receipts in respect of these copies were obtained from them. The case was then. adjourned to the 29th of June 1960. On the 29th June when the case was called out both the accused and the Police Prosecutor were present. The learned Magistrate considered the investigation papers and after hearing the Police Prosecutor framed a charge as aforesaid. He also recorded the statements of both the accused who pleaded not guilty and claimed to be tried. The case was then adjourned for hearing on the 8th of July 1960 after the accused were informed of the adjourned date. The Roznama for the 29th June 1960 indicates that though as many as 10 persons were cited as witnesses in the charge-sheet the Police Prosecutor applied for summons only for witnesses Nos. 3 and 4. From the charge-sheet it appears that these witnesses were the injured woman Kali and her husband Sukha Rayla. On the 8th of July that being the adjourned date when the case was called out accused No. 1 was present having been brought from the jail and accused No. 2 was also present. No witnesses for the prosecution were kept present and the summons which were issued against Bai Kali and Sukha Rayla were found to have been returned unserved. As no prosecution witnesses were thus present the learned Magistrate it would appear was obliged to adjourn the matter to the 20th of July 1960.

(2.) The endorsement in the Roznama under the date 8th of July 1960 shows that the learned Magistrate directed that the two prosecution witnesses Kali and Sukha Rayla in whose names the summons had been issued on the 29th June should be informed of the adjourned date and that they should be re-summoned. We presume that by the word resummoned what was meant was that fresh summons should be issued against them in view of the fact that the original summons had been returned unserved. On the 20th July 1960 when the case was again called out though both the accused were present none of the witnesses for the prosecution was present and even the summons which had been issued in the names of Bai Kali and her husband Sukha Rayla and sent to the Police Station at Songadh for service had not been returned either served or unserved by that police Station. It seems that the Investigating Officer had remained absent on all these dates. The Police Prosecutor made an application for adjournment on the ground that the summons issued by the Court had neither been served nor returned. The ground urged by the Police Prosecutor in that application does not appear to be satisfactory for it was not as if an attempt to serve the two witnesses had been made and the summons were returned unserved. On the contrary the Roznama under the date 20th July 1960 shows that the Police Station at Songadh had not cared to return the summons either served or unserved. The learned Magistrate in these circumstances rejected the application for adjournment as there was nothing to show that the Police Station at Songadh had made any attempt to serve the summons on the two witnesses and had not even returned the summons unserved to the Court. Even on the 20th July 1960 the P. S. I. Songadh had not attended the Court nor had he sent any instructions to the Police Prosecutor to the effect that he had not been able to serve the summons on the two witnesses owing to any valid reason.

(3.) The file of the Court of the learned Magistrate shows that after the case was adjourned on the 8th of July 1960 to the 20th of July 1960 an endorsement was sent by P. S. I. Songadh to the Head Constable at Uchhal with instructions to inform the two witnesses Kali and her husband of the order passed by the learned Magistrate. The file contains an endorsement purporting to be that of the Head Constable Uchhal to the effect that he had received the instructions of the P. S. I. on the 21st July 1960 that is to say after the adjourned date namely the 20th July 1960 On the 23rd July 1960 the P. S. I. made a report to the learned Magistrate stating therein that due to the postal strike his instructions regarding the learned Magistrates order dated 8th July 1960 had not reached the Outpost and therefore neither the notices nor the summons to the two witnesses had been serves. On the 20th July 1960 the learned Magistrate disposed of the case by acquitting the accused under sec. 251-A sub-sec. (11) of the Code of Criminal Procedure.