PUBLIC PROSECUTOR Vs. M SAMBAING MUDALIAR

JUDGEMENT

(1.) THE matter that arises for consideration in these appeals filed by the State against the acquittal of the accused is whether it is appropriate to apply S. 251-A (11) Cri. P. C. and acquit the accused in case where the prosecution has neglected to produce witnesses in support of the prosecution case as required under s. 251a (7) Cr. P. C. The learned Additional First Class magistrate, Kulitalai, who tried the case, observed in his judgment that notwithstanding the peremptory order issued by the court declining to grant further adjournments, the prosecution was not ready with its evidence on the date of hearing and that therefore the accused were entitled to an acquittal under S. 251-A (11), Cr. P. C. The learned Public Prosecutor, who has appealed to this court, against the order of acquittal, for want of diligence on the part of prosecution, in the matter of producing its witnesses is permissible in summons cases, under s. 247 Cr. P. C. as has been out in A. Reddi v. S. Goundan, 1942 Mad WN Cr. 77: (AIR 1942 Mad 584), but the position is quite different in the case of the trial of warrant cases, wherein the court cannot automatically acquit the accused for the laches of the complaint. No doubt, that decision dealt with a case that arose before the amendment of the Criminal Procedure Code in 1955 and when S. 252 applied to all warrant cases filed whether on a police report or otherwise. This section imposed an obligation on the magistrate himself to summon the appropriate witnesses for the prosecution of the case.

(2.) THE question for considerations whether after the commencement of the criminal Procedure Code, in 1955 by the introduction of S. 251-A for dealing with the warrant case taken on file on a police report, the position has altered and whether in such cases, the magistrate can automatically acquit the accused where the prosecution has not been diligent in producing the evidence in support of its case. The learned Public Prosecutor referred me to a decision of the Assam High court in Nathuram v. Pannalal, AIR 1961 Assam 97 and the decision of he Kerala high Court in State of Kerala v. Aboobaker, 1961 mad LJ Cr 123 (Kerala) both of which have been followed by the Orissa High Court in State of Orissa v. Sibcharan singh, A different view was taken by the Calcutta High Court in jyotirmoyee Bose v. Birendranath, In this last mentioned decision the is a short observation that in a case tried under S. 251-A of the Code, the magistrate was not compelled, as he would be if the case was tried as a warrant case instituted otherwise than on the police report, to proceed in terms of ss. 256 and 257 of the Code. The Calcutta High Court observed that the case had been pending for over two years and had passed through various vicissitudes and consequently the magistrate was perfectly right in acquitting the accused persons and thereby saving them from further aforesaid decision of the Calcutta High Court really turned on the circumstances of the case, and therefore, did not enter into a detailed discussion of the scope of the Magistrate's power under s. 251-A (11) Cr. P. C. and the circumstances under which it can be exercised. Taking into account the scheme provided in the several sub-divisions of s. 251-A cr. P. C. it can be stated that the intention of the legislature as expressed in these provisions was not to extend the provision of acquittal under S. 25-A (11) to cases where the prosecution had been default. Under the scheme of S. 251-A Cr. P. C. the magistrate has to consider the statements recorded in the case diary, and if he finds the charge to be groundless he can discharge the accused. But when he finds the charges to be prima facie substantiated, he is required to frame a charge and then follow the procedure indicated in the several sub-sections from (4) to (9) of s. 251-A. It is after this stage has been reached that he is permitted to acquit the accused under S. 251-A (11 ). What the magistrate has done in this case is that when he found that the prosecution had failed to product their witnesses be required under sub-section (7) of S. 251-A Cr. P. C. he has proceeded to record a finding of acquittal under S. 251-A (11 ). The magistrate had already passed a charge against the accused which implies that there is prima facie case against him which if unrebutted would warrant his convictions. That would necessitate calling upon the accused in any event to enter upon his defense under Section 251-A (8) before S. 251-A (11) is applied in his case.

(3.) THE Kerala High Court has observed in 1961 Mad LJ Cr 1213 at 126 (Kerala):