STATE OF MADHYA PRADESH Vs. KALYAN

JUDGEMENT

(1.) After obtaining the requisite leave, the State-appellant has preferred this appeal against the judgment of acquittal recorded by Judicial Magistrate, First Class, Sheopur Kalan, in criminal case No. 304 of 1982 dt. 24-1-1983.

(2.) The respondents were prosecuted by the State for having committed offence punishable under Ss.323 and 326/148, IPC. They were, accordingly, charged for having committed these offences on 22-2-1982 at 3.00 p.m. in village Bilwara. The charge was framed by the trial Court on 10-7-1982. On 2-12-1982 the prosecution examined its witnesses Ramgopal (P.W. 1), Nanji Ram (P.W. 2) and Malkham (P.W. 3). Other present witnesses Ramsingh and Devishankar were bound over for the next day, i.e. 3-12-1982. On 3-12-1982 Ramsingh and Devishankar were examined, cross-examined and discharged. The court on that date directed rest of the witnesses to be examined and fixed the case for further prosecution evidence on 18-12-1982. On 18-12-1982 the prosecution examined Kanhaiyalal. Yogesh Gupta, the investigating officer, though served, was not present. Another prosecution witness Dr. Sonkar was also not present on that date. Hence, coercive method was used by the Court and both these witnesses were ordered to be summoned by bailable warrants of Rs. 200/- each and rest of the witnesses were directed to be called by summons. The case was listed for further evidence on 3-1-1983. On that date prosecution witness Sukhdeo was present. He was bound over, but Dr. Sonkar and investigating Officer Yogesh Gupta were neither present nor their bailable warrants had returned. They were again directed to be summoned by bailable warrants for the next date and 11-1-1983 was fixed for examination of further prosecution witnesses. On 11-1-1983 prosecution witness Sukhdeo was examined, cross-examined and discharged. The bailable warrants, which were sent, had not returned to the Court after service. Dr. Sonkar and sub-Inspector Yogesh Gupta were local witnesses, i.e., they resided at Sheopur Kalan. On direction of the court, the Court Moharrir tried to contact the Sub-Inspector and Dr. Sonkar on telephone, but, in spite of this, these two witnesses did not attend the Court. Hence, the case was adjourned for 13-1-1983 as the last opportunity to the prosecution to examine its witnesses. On 13-1-1983 none of these prosecution witnesses were present, nor the processes issued had returned. From the conduct of the prosecution, the Court concluded that it is not interested in examining those witnesses. Hence, it closed the prosecution case and fixed 18-1-1983 for recording the statements of the accused-respondents. On 18-1-1983 the A.P.P. on behalf of the State filed an application under S.311, Cr.P.C., praying therein for examining Dr. Sonkar and Yogesh Gupta, Sub Inspector, as Court witnesses. The trial Court reasoned that both these witnesses were local, several opportunities were given to the prosecution producing them and when they were not produced and examined by the prosecution, it would not be just and proper to go on extending the date for their presence. After recording the statements of the respondents the trial Court heard arguments on 21-1-1983 and on 24-1-1983 the impugned judgment of acquittal was pronounced.

(3.) Shri Arvind Dudawat, learned Additional Government Advocate, attached the impugned judgment on the ground that it was the duty of the Court to summon these two witnesses, as their testimony was essential for the proper adjudication of the case. He further contended that the prayer of the prosecution made under S.311, Cr.P.C., should have been allowed and these two witnesses should have been examined by the trial Court as Court witnesses. He has cited a Division Bench judgment of this Court in State of Madhya Pradesh v. Ramsingh Prem Singh 1976 MPLJ 454. In this judgment this Court held that in a case instituted on a police report under S.251-A, Cr.P.C., the Magistrate had to adopt the procedure for trial in warrant cases. It is true that in such cases no duty is cast upon the Magistrate under sub-sec. (6) of S.251-A to compel the attendance of any witness unless it is applied for. Thus, the condition precedent is that the prosecution must apply to the court for summoning its witnesses through the medium of the Court. Let us, therefore, examine whether the prosecution in this case applied for summoning the witnesses or not. On examination of the record, it is clear that it was not the prosecution which applied for summoning its witnesses to the Court. It would, therefore, he relevant to examine the provisions of S.242 of Chapter 19 of the Cr. P.C., which contains procedure for trial of warrant cases by Magistrates. For convenience, the provision is reproduced below :