SK EASIN ALI Vs. SK ABDUL ODUD

JUDGEMENT

(1.) This revisional application is directed against the order passed by the learned Judicial Magistrate, 2nd Court, Tamluk on the 9th July, 1979 acquitting the accused opposite parties under Sec. 248(1) of the Code of Criminal Procedure in C. R. Case No, 1060 of 1974. It appears that on the complaint of the petitioner which was sent by the learned Magistrate under Sec. 156(3) of the Code to the police for investigation, the police after completing investigation, submitted charge -sheet against all the accused opposite parties. The learned Magistrate framed charges under Ss. 148/447/ 426/325/323 of the Indian Penal Code against all the accused opposite parties and further charges under Sec. 379 IPC against Abdul Matlab and Abdul Rashid and fixed the case on 19.11.75 for taking prosecution evidence. As no prosecution witness was present on 19.11.75 the learned Magistrate adjourned the case to 10.3.76 for examination of prosecution witnesses. On 10.3.76 no prosecution witness was present and the learned Magistrate issued summons fixing 7.9.76 for prosecution evidence. On 7.9.76 he adjourned the case to 28.10.76 as no summons had been issued after ordering issue of summons. On 28.10.76 no prosecution witness was present and there was no service return. So, he adjourned the case to 17.3.77. On 17.3.77 no prosecution witness was present and there was no service return although summonses were duly issued. The learned Magistrate again ordered issue of fresh summons to the witnesses and fixed the case on 16.6.77 for evidence on 16. 6. 77 no prosecution witness was present and there was no service return. He fixed the case on 28. 9. 77 for evidence directing the prosecution to produce witnesses already summoned and issued of summons to some other witnesses. On 28.9.77 no prosecution witness was present and there was no service return. The learned Magistrate recorded that no steps were taken by the prosecution and he directed the Assistant Public Prosecutor to take proper steps to bring the witnesses on the next date, fixing the case on 2.3.78 for evidence. On 2.3.78 no prosecution witness was present and there was no service return. The learned Magistrate observed that it appeared from the record that summonses were duly issued to all the witnesses but none appeared before the court. He fixed the case on 26.4.78 for evidence as the last chance and directed the prosecution to produce the witnesses on the date fixed with a warning that in default the evidence would be closed, On 26.4.78 there was no prosecution witness present and no service return. Nor was there any explanation from the prosecution. The learned Magistrate in view of his previous order closed the prosecution case and fixed the case on 19.7 -78 for examination of the accused under Sec. 313 of the Code. Ultimately the learned Magistrate took up the case on 9. 7. 79 and after observing that as no witness had been examined by the prosecution, there was no incriminating evidence against the accused persons, he found that the prosecution case failed and passed the impugned order of acquittal.

(2.) It is submitted by the learned advocate for the petitioner that as there was no service return and no prosecution witness was served with any summons to attend the court the learned Magistrate should not have closed the prosecution evidence without taking proper steps to compel the attendance of the prosecution witnesses. It is, therefore, argued that the impugned order of acquittal is bad in law and should be set aside and the informant petitioner should be given one chance to produce witnesses in support of the prosecution case.

(3.) In this connection, the learned advocate for the petitioner has referred to the decision in the case of Paran Chandra vs. Dulal Ghosh : AIR 1965 Cal 387. In that case instituted on police report the learned Magistrate ordered issue of summons on prosecution witnesses and after certain adjournments without taking any steps for procuring attendance of the witnesses proceeded further and after examining the accused persons passed an order of acquittal. The learned single Judge held that the order of acquittal was unwarranted by law and observed that the learned Magistrate ought not to have taken up the case for further hearing without being satisfied that his order for the attendance of witnesses has been carried out or not. -