P L KASICHETTIYAR Vs. KARUPPASAMY

JUDGEMENT

(1.) This revision is directed against the order of acquittal of the learned Judicial Magistrate, Palani in C.C. No. 157 of 1989 dated 24.12. 1991 for the offence under Sections 457 (2) and 380 of Indian Penal Code. The victim of the occurrence is the Revision petitioner.

(2.) The prosecution version is that on 28.2.1985 the accused in this case provided sarbath, a soft drink by mixing in it sleeping pills and when this was consumed by P.W. I and his son, they fell asleep and taking advantage of that situation, the accused removed the key of the pawn brokers shop in which P.W. 1 was working as head accountant and opening the lock of that shop committed theft of the jewels and cash of Rs. 42,280/-. The prosecution has cited as many as 31 witnesses in this case including the Doctors, who examined P.Ws. 1 and 2 for their semi-conscious condition and also the Forensic Expert for detecting dipicism which induces sleeping. The trial went before the learned Magistrate by examining eight witnesses and as the Investigating Officer could not be served, the learned Magistrate closed the prosecution case and after hearing the arguments of both sides, acquitted the accused under Section 248 (1), holding that the prosecution has not established the guilt of the accused. It is against this order of acquittal, P.W. 1 the victim has come forward with this revision. Though notice was served in this revision to the 1st respondent/accused, he has not chosen to enter appearance either by himself or through a counsel.

(3.) The learned counsel Mr. Karpagavinayagam would contend that this is a case in which both the Magistrate and the Assistant Public Prosecutor, who conducted the trial before the Court below, did not discharge their duties properly and due to utter negligence in conducting this trial, the accused has been acquitted as though there is lack of evidence to prove the prosecution case, in spite of the fact that volumes of evidence could have been brought before the Court, by taking proper steps by the Assistant Public Prosecutor and therefore, the order of the lower court has to be set aside and remanded back for examination of the other witnesses cited in the charge sheet. The prosecution case is that on the complaint of P.W. 1, the accused was arrested and on his confession three gold bangles, cash of Rs. 32,250/- were recovered from a bush and another Rs. 10,000/- was recovered from one Habibullah, who is cited as witness No. 12 in the charge sheet. Further the sarbath bottle which contained the remains was sent for chemical analysis, which also revealed the presence of the chemical, which induced the sleeping and the Chemical Analyst and also the Clerk, who sent the Material Object to the Forensic Laboratory have been cited as witnesses, but the Assistant Public Prosecutor, who conducted this case before the court below, did not take steps to summon the said Habibullah from whom the cash of Rs. 10,000/- was recovered and the Court clerk, who sent the material object for chemical analysis and the Analyst, who examined the sarbath, to give evidence in this case to prove the guilt of the accused and further the learned Magistrate though issued summons to the Investigating Officer in this case did not pursue in securing that witness either by issuing fresh summons or warrant of arrest, but had simply closed the evidence with an observation that this is an old case pending from 1985 onwards and that the accused has been put to all difficulties due to the pendency of the case. Further, the learned counsel for the revision petitioner contends that even the revision given by the learned Magistrate for the acquittal of the accused are contrary to the facts, as P.W. 5, who supplied the sarbath to the accused, though has spoken in his evidence that he sold the sarbath to the accused, the learned Magistrate has observed that his evidence is hearsay, contrary to the truth and similarly P.W. 6, who identified the jewels in the court has been described as a hearsay witness and therefore, the learned Magistrate without applying his mind has acquitted the accused. As the prosecution case is that the accused made confession on his arrest, leading to the recovery of the gold jewels and the cash stolen from the pawn brokers shop were identified by the witnesses and one Habibullah also has stated before the Police that this respondent gave Rs. 10,000/- to him, which was seized by the Police later on, they are the important witnesses to prove the guilt of the accused. Further, for the confession of the accused leading to recovery and the Police Officer, who conducted the investigation are important witnesses. Added to that, the forensic report received by the court also is an important document to prove the contents of the soft drink, taken by P.Ws. 1 and 2. It is represented that even this forensic report, which is available in the Court was not marked through the court clerk, who has been cited as a witness No. 26 in the charge sheet. The Doctor, who examined P.Ws. I and 2 with regard to their semiconscious condition also is an important witness, who has been cited as witness No. 20 in the charge-sheet. It is a pity that the Assistant Public Prosecutor who conducted this case before the learned Judicial Magistrate, did not apply his mind to seek summons 10 these important witnesses to prove the part played by the accused in the commission of the offence and the learned Magistrate was equally responsible in not applying his mind to pursue the summons issued to the investigating officer. No doubt he has observed that he issued summons to the Sub Inspector of Police through the Deputy Superintendent of Police, who received the summons, but did not respect the court. It is not clear whether the summon was served on the Investigating Officer or served only on the Deputy Superintendent of Police, who in turn had to issued the summons to the concerned Investigating Officer. Whatever might have been the attitude of the Police Officers, the Court is not powerless to secure the witnesses to be called for their evidence. If the Investigating Officer did not turn up to the Court in spite of his receiving a summon, the Court is empowered to issue warrant for the arrest of the witness and as such coercive steps has become imperative when the Court finds that the witnesses were evading the summons. This Court in Marappa Gounder v. Venkatachalam and another 1983 L.W.C. , has considered this kind of latches in the trial courts of course some time due to the non co-operation or negligence on the part of the prosecuting agency by not producing the witness and the hardship faced by the Courts in rendering justice in the cases before it. Referring to the Full Bench case of this Court in 1980 Law Weekly page 187, Ratnavel Pandian, 3. (as he then was) has observed as follows: A prosecution may become unsuccessful for various reasons such as lack of evidence, technical flaws and defects in the investigation, improper conduct of the case before the court by the investigating agency, etc. Those who are entrusted with the task of the enforcement of law and administration of justice does should see that justice not fail on mere technical grounds, because a layman such as the victim in this case, who is not concerned with the technical flaws or defects, is anxious about the proper and effective enforcement of law and administration of justice at the hands of the Court, that is to say, he is eager to see that the real offender does not go unpunished. The public at large expect the process of investigation and the administration of justice to be efficiently, fairly and speedily carried on without giving any room for a culprit to escape through the loop-holes of the investigation or due to the glaring misbehaviour of the investigating agency. Needless to say, that the primary and paramount object of the criminal law, viz., the prevention of crimes, depends upon the interest evinced by the investigating officer in a case investigated by him. If cases of grave nature end in acquittal on mere technical grounds or on the mere lapses on the part of the Investigating Officer or on the part of the prosecuting agency in the conduct of the case or of the court itself in not applying its judicial mind in its great responsibility of administering justice, the citizens would lose their confidence and become desperate and consequently will not show any interest in co-operating with the law-enforcing authorities in their task of enforcement of law. The courts holding the scales of justice should always remember that there may be a scale made of gold to weigh justice, but that there is no scale made of any material to weight the injustice done to the society.