STATE Vs. ABDUL MALIK

JUDGEMENT

(1.) THE State has come up in appeal against the order off acquittal passed by the City Magistrate, Saharanpur. THE respondent Abdul Malik was standing his trial under the Arms Act. On behalf of the prosecution three witnesses and one investigating officer were examined and cross-examined. On 5-6-1972 the respondent: moved an application for recalling the witnesses for further cross-examination on the ground that on the first date of hearing he was not in a position to engage a counsel. He alleged that ha liad engaged a counsel and that the witnesses should therefore be recalled. On this application the Magistrate passed an order to the effect that 'because the accused had not engaged any counsel on the date of hearing, the witnesses cannot be recalled'. He also observed that if the accused so wanted he could call them in his defence. Dasti summonses were ordered to be issued and the accused was asked to file the necessary process fee. It seems that the witnesses did not turn up and on 9-6-72 the respondent informed the Court that he had taken dasti summones, but the witnesses were not available. THE Magistrate then ordered that summonses should be issued again and the Pairokar was also directed to produce the witnesses. It was again remarked that the expenses of the witnesses shall be borne by the accused. On the date fixed viz. 13-7-1972 the witnesses again did not turn up. THE Magistrate then remarked that this was causing harrassment to the accused and the cross examination of the witnesses was, therefore, dropped. THE order of acquittal was passed on 20-7-1971 on the ground that the accused could not avail the opportunity of cross-examining the witnesses and as such the prosecution evidence remained untested and could not be relied upon.

(2.) FROM the facts stated above, it is obvious that the order of acquittal passed by the Magistrate is wholly unjust and unwarranted by law. It seems that the Magistrate had not looked into the previous orders passed on 5-6-72 and 9-6-1972. It was definitely stated in the first order that the witnesses could not be recalled and they were allowed to be recalled only as defence witnesses and the responsibility was put on the accused to take dasti summonses and bring the witnesses. According to the second order the summonses were issued and the Pairokar was ordered to produce the witnesses. It is, however, not clear from the order of 9-6-1972 whether this direction was to the Pairokar of the accused or to the Pairokar of the prosecution. At any rate, this much is evident that the prosecution was under no obligation to produce the witnesses and the accused had taken upon himself the responsibility of bringing the witnesses. If in these circumstances, the witnesses had not turned up, the prosecution could not be allowed to suffer. Assuming for the sake of argument that the prosecution had also a duty to call the witnesses, it was for the Magistrate to have adopted coercive measures to secure the attendance of the witnesses in order to do justice in the case. An order of acquittal on the ground that the accused did not get an opportunity of cross-examining the witnesses is wholly wrong and must, therefore, be set aside.