STATE OF MADHYA PRADESH Vs. KALU THAWAR

JUDGEMENT

(1.) RESPONDENT Kalu and Bapu were prosecuted under Section 34 of the Police Act. The case was fixed for 29-11-1963 for recording evidence. Earlier, at the instance of the prosecution summons had been issued to prosecution witnesses but on the aforesaid date of hear-ins the witnesses did not turn up. The learned Magistrate forthwith passed an order of acquittal aggrieved by which this appeal was preferred by the State.

(2.) IT is contended for the appellant that it was the duty of the trial Court to await return of the summons which had been issued or to issue fresh summons for attendance of the prosecution witnesses; and. in either case another date ought to have been fixed. Learned counsel for the respondent contends that the trial Court was right in not fixing another date for hearing because the police prosecutor was also not present on 29-11-1965 so that there was no one on behalf of the Prosecution to apply for issuance of fresh summons. The argument is that the Magistrate is not bound to issue a fresh summons to a witness unless there is an application for that purpose. Section 244 (2) of Cr. P. C. reads thus:

(3.) BUT in the present case the real question that arises for consideration is different. Cognizance was taken by the trial Court on the report of a Police Officer. Therefore Sub-section (2) of Section 244. Cr. P. C. has no application to this case. Power is given to the Magistrate under this sub-section to issue a summons to the witness when the 'complainant" or the accused applies for it. In the Criminal Procedure Code the word "complainant" has a technical meaning. When a challan is put up by the police the prosecution cannot avail itself of the Sub-section. This is all the more so because there are separate provisions in the Code to secure the attendance of a prosecution witness in a challan case. The officer in-charge of a police station is authorized under Section 170 (2) to require a witness to execute a bond for appearance before Magistrate for giving evidence. It is true that in view of the provisions of Section 171 a police officer cannot compel a witness to accompany him to the Court nor can he subject him to unnecessary restraint or inconvenience vet. where a witness refuses to attend or execute a bond as aforesaid the police officer may forward him in custody to the Magistrate who may detain him in custody until the witness executes such a bond or until the hearing of the case is complete Thus quite apart from Section 244 (2) a complete machinery is provided in the Code to secure attendance of prosecution witnesses in a case where prosecution is initiated on the report of a police officer. This is evidently the reason for restricting the application of Section 244 (2 ). Cr. P. C. to the case of a witness whom the "complainant" or the accused requires to attend or to pro-duce any document or other thing. This position is confined to the trial of a summons case. It is different in that of a war-, rant case as will be clearly seen in Section 252 (2) of the Code.