PABAN CHANDRA MAJUMDAR Vs. DULAL GHOSH

JUDGEMENT

(1.) This Rule is directed against the order of the learned Magistrate at Ranaghat dated 15th February, 1963 whereby he acquitted the accused persons charged under Section 324, Indian Penal Code read with Section 24 of the Cattle Trespass Act, under Section 251A(XI) of the Code of Criminal Procedure. What happened is that the present petitioner who is the complainant lodged a first information report with the police station Nrisinhapur on the 5th July, 1962 on the allegation that Basudeb had assaulted him and Dulal inflicted a blow on his chin with a hesua causing bleeding injuries. After investigation the police submitted challan and the trial commenced before the learned Magistrate. Mr. Kishore Mukherjee, the learned Advocate appearing for the petitioner, submits that the learned Magistrate passed the order of acquittal without taking any steps for procuring the attendance of the witnesses on whom the learned Magistrate was pleased to issue summons. His contention is that when once the Magistrate passed the order for issuing the summons it was his duty to pursue the matter and to see whether the service had really been effected and if not already effected what further steps were to be taken. It will appear that on the 25th October, 1962 the learned Magistrate adjourned the case to 8th December, 1962 for evidence. Accordingly he ordered that the summons should be issued upon the witnesses. On the 8th December, 1962 the Magistrate further ordered that summons be again issued upon the witnesses. On that very date it appears that the Investigating Officer appeared before the learned Magistrate in pursuance of the summons but he was not examined. On the 7th January 1963 the same Magistrate passed an order to the effect that since there was service return in two cases there are service returns in other cases also. By using this expression it seems to me that the Magistrate reported to say that since service returns in respect of two witnesses were received, it should be presumed that other service returns were also on the record. He however appreciated the difficulty in this matter and adjourned the case to the 12th February 1963 for ten prosecution witnesses and also issued an order of summoning them. On the 12th February, 1963 only the doctor who was present was examined and on account of the absence of the prosecution witnesses he rejected the prayer of the Court Sub-Inspector for any adjournment. He examined the accused persons present under Section 342 of the Code of Criminal Procedure and on their pleading not guilty proceeded to record his judgment whereby he has acquitted the accused as stated before under Section 251A (XI) of the Code of Criminal Procedure.

(2.) The point of law as involved in this case is when a Magistrate takes upon himself the task of summoning witnesses, whether it is incumbent upon him to satisfy himself that such summons have really been served and whether in spite of such service the witnesses have without any sufficient reason absented themselves from appearing before the court. I accept the contention of Mr. Ambica Charan Bhattacharya, the learned advocate appearing for the opposite parties, that in a case under Section 251A, no duty is cast upon the Magistrate to procure the attendance of the witnesses. Sub-section (7) provides that on the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. This sub-section casts no duty upon the Magistrate to issue summons upon any witness in a proceeding started under Section 251A and this is dis- tinguishable from the provisions contained in Section 252 which provides for cases started upon private com plaint. It has been provided in Sub-section (2) of the section that the Magistrate shall ascertain, from the complainant or otherwise, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon them to give evi dence before himself such of them as he thinks necessary. Undoubtedly, such a provision has not been made in Section 251A and on the face of it, I accept the contention raised by Mr. Bhattacharya that no such duty is cast upon the Magistrate in a case started on the police challan as enumerated in Section 251A of the Code of Criminal Procedure. But in this case the matter for decision is, as I have already stated before, whether after the order passed by the learned Magistrate for issue of summons he ought to have taken all precautions to see whether the summons upon all the witnesses have been served. The entire record has been placed before me by the learned advocate of both the parties and it does not appear from the record that any step for serving the summons upon the re maining nine witnesses out of eleven witnesses was taken for procuring their attendance and as such the Magistrate's presumption as recorded in his order dated the 7th January 1963 is absolutely unwarranted. It has been decided in a case re ported in Jyotirmoyee Bose v. Birendra Nath Prodhan, that Sub-section (8) of Section 251-A does not enjoin upon the Magistrate any duty to compel the attendance of any witness, unless it is applied for. From this decision it appears that if any application on behalf of the prosecution is made for the purpose of issuing process upon the witnesses the Magistrate may in his discretion accede to the prayer made by the prosecution and when once such a prayer is accepted it is the duty of the Magis trate to see whether the order as passed by him has been carried out or not. In this particular case I have already observed that his directions were never carried out and as such it was the bounden duty of the learned Magistrate to see, when once he has passed an order for issue of summons that the order has really been carried out. That element in this particular case is wanting and as such when he exercised his discretion in favour of the prosecution to issue summons at its request, he should not have proceeded with the case as if no witnesses have been produced without being satisfied that the wit nesses were unable to appear in spite of summons. In this connection a decision of the Orissa High Court may also be referred to as reported in State of Orissa v. Sib Charan Singh. His Lordship of the Orissa High Court R.K. Das, J., decided that the word "Produced" in Sub-section (7) of Section 251A cannot be given any restricted mean ing as to saddle the prosecution with the entire res ponsibility of producing the evidence. A duty also is cast upon the courts for enforcing attendance of the witnesses by the process provided by the Criminal Procedure Code, The courts are not therefore absolutely powerless when the parties fail to produce evidence relevant in a case. On the other hand, the power of the Court in this respondent is very wide and the court may at any stage of the proceeding summon any witness in order to deter- mine the truth or otherwise of the tacts of the case under trial before it. I agree with the decision made by the Orissa High Court made on this point and find that the learned Magistrate ought not to have taken up the case for final hearing without being satisfied, as stated before, that his order for procuring the attendance of the witnesses under summons has been carried out or not In the circumstances, the order of acquittal passed by the learned Magistrate under Section 251A(11) Criminal Procedure Code is not warranted by law.

(3.) Mr. Bhattacharya has further argued before me that inasmuch as on account of the non-compliance of the order of the learned Magistrate in the matter of issuing summons has not caused any failure of justice, this Court should not interfere with the order of acquittal passed. Apart from the question whether there has been a failure of justice or not on account of the long delay in the proceeding, I must say that I am constrained to interfere with the order passed as it is on the face of it illegal for the reasons stated by me in the foregoing paragraphs. The contention as raised by Mr. Bhattacharya in this regard cannot therefore be accepted.