DAMODAR BEHERA Vs. KUBERA BALIARSINGH AND 13 ORS.

JUDGEMENT

(1.) THIS is an appeal by the complainant against an order of acquittal passed in favour of the Respondents in a warrant case. On 21 -4 -60, the complainant was present with four witnesses. They were examined and cross -examined, and the case was adjourned to 6 -5 -60 for consideration of the charges. On 6 -5 -1960, charge was framed against all the accused persons under Section 379 Indian Penal Code, to which they pleaded not guilty. The learned Magistrate, after so framing the charge, posted the case to 6 -6 -1960 for cross -examination after charge. On the adjourned date, the complainant appeared with two witnesses and filed a petition for adjournment stating that he had no idea that the witnesses previously examined and discharged were to be brought afresh for further cross -examination, and that he had brought in two new witnesses and summoned two other fresh witnesses and who re not present, and so he needed an adjournment to produce the witnesses previously examined and discharged. The trial Court observed, "He prays for time on the ground that he has misunderstood the position. This is not acceptable. The order sheet dated 6 -5 -1960 is very clear. The prayer of the complainant is rejected and as he failed to produce the witnesses for cross -examination after charge, the evidence of p.ws is expunged. As I am not inclined to confide the accused on the uncorroborated statement of p.w. 1 (complainant) alone, the accused are acquitted".

(2.) AT the inception, I would observe that the order of acquittal by the trial Court does not amount to a judgment, since it does not conform to the requirements of Section 367 Code of Criminal Procedure which provides that the judgment shall contain the point or points for determination the decision thereon and the reason for determination, the decision thereon and the reasons for the decision. That, however, is a small matter. The trial Court, in fixing the date to 6 -6 -60 for further cross -examination, did not follow the procedure laid down by Section 256 Code of Criminal Procedure which provides that "if the accused refuses to plead, or does not plead, or claims to be tried, he shall be required to state at the commencement of the next hearing of the case or if the Magistrate for reasons to be recorded in writing so thinks fit. Forth with whether he wishes to cross -examine any and, if so which of the witnesses for the prosecution whose evidence has been taken. If he says be does so wish, the witnesses named by him shall be recalled and, after cross -examination (if any). They shall be discharged. The evidence of any remaining witnesses for the prosecution shall next be taken. In the present case, after framing the charge, to which the accused persons pleaded not guilty, the learned Magistrate did not ascertain from the accused persons, as to which of the p.ws. already examined they wanted to cross -examine. Obviously, he could not ordinarily do it that day unless there were reasonable grounds for doing so, which the Magistrate was required by law to be reduced into writing. Apparently, the learned Magistrate left that matter to be as contained from the accused persons on a future occasion. In such a position, there could he no justification for the learned Magistrate to quire that all prosecution witnesses whosoever had been previously examined should be present, so that the accused persons may take their choice for cross -examining some or all of them. The provision of Section 256 Code of Criminal Procedure is obviously meant to save the complainant from harassment in producing witnesses who might not be required for further cross -examination. Apparently, in the interest of expeditious trial, the learned Magistrate sought to over step the provisions of Section 256 Code of Criminal Procedure and since he was cognisant that he could not directly require the complainant to produce his previously examined witnesses until he had ascertained from the accused are to who were to be examined, he passed the following order in vague terms, "Case posted to 6 -6 -1960 for cross -examination after charge". This order of the learned Magistrate did not directly require the complainant to produce his witnesses though there was an implication to that effect. Hence, if the complainant did not produce his previously examined witnesses on the adjourned date, there was no violation by the complainant of the statutory provision of the law, or the learned Magistrate 's order. In the circumstances, the learned Magistrate 's order refusing to grant an adjournment to the complainant and expunging the evidence of the p.ws. previously examined was purely arbitrary. Further it is to be noted that on the adjourned date, the Complainant was present with two new witnesses. Even if the learned Magistrate refused to grant an adjournment for production of the previously examined witnesses and wanted to expunge their evidence for non -appearance, there was apparently no justification for not examining the two new witnesses present on the date. The offence was a cognisable one, and in such a case, as held in Bharat Rana v. Rama Nahak, 26 C.L.T. 525 the Court should have taken steps to enforce the attendance of the prosecution. 1 witnesses for cross examination. It was further observed in Bharat Rana v. Rama Nahak, 26 C.L.T. 525: