JHUNKHUN Vs. STATE OF U P

JUDGEMENT

(1.) THIS revision by Jhunkhun is directed against an order of acquittal dated 29-6-1979. The polii:e had challaned 36 persons under Secs. 147, 323/149, 452 IPC with a supplementary report under Sec. 4 Untouchability Act, with regard to an occurrence of 5-2-1976 in which eight Hirijans including three women were alleged to have been beaten up by the accused persons. The Magistrate acquitted the accused for want of evidence. The applicant's contention is that the prosecution having applied to the Magistrate for securing the attendence of witnesses through warrants the Magistrate could not have dismissed the complaint for mere absence of the witnesses and should have made further efforts to secure their presence.

(2.) THE record shows the facts to be these. THE first date for evidence fixed was 25-1-1979 but the prosecution wanted time as the witnesses were not present. THE witnesses were then summoned for 10-4-1979, but they were again absent. THEreafter on the application of the! public prosecutor bailable warrants were ordered to be issued for some of them. On the third date 7-5-1979 again the witnesses were absent and non-bailable warrants appear to have been issued. Even so on the next date dated 20-6-1979 no witnesses turned up and on the application of the prosecutor non-bailable warrants were again ordered to be issued with the direction that no further time will be given. In spite of this on 29-6-1979 no witness turned up and the Magistrate proceeded to pass the acquittal order in question. It must also be noted that only one of these processes, namely, the warrant issued on 11-5-1979 against four witnesses happens to be on record. THE police report on this is that correct name of the village be supplied, it appears that instead of village Datauli the court office had put down the name of the village in this warrant as village Patauli. THE other processes are not on record and there is nothing to indicate whether these were issued and correctly issued from the court office. Much less do we knew if any attempt for service of those had been made or the reason for non-service.

(3.) IN the present case on facts it is not possible to say that the Magistrate made reasonable efforts to summon the accused. The least that he should have done was to check that the summonses or warrants had been sent to the police for service but they had on so many occasions failed to comply. If he felt that further effort in this situation was not necessary, he should have noted this on the record. Actually in most cases some further efforts would be desirable for local police cannot be made the arbiter of whether the case will go with or without the evidence even after the court has summoned the witnesses. The order is, therefore, unsustainable.