RAMA CHANDRA MISHRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Order of acquittal passed by icarned Judicial Magistrate, first class, Bhubaneswar (in short, J.M.F.C.) in G.R. Case No. 1875 of 1991 is the subject-matter of challenge in this application by the informant, Maguni Charan Behera (opposite party No.2) (described as accused hereinafter) faced trial before the learned J.M.F.C. on the accusation of having committed an offence punishable under section 406 of the Indian Penal Code, 1860 (in short, I.P.C.'). Law was set into motion on the accusation of petitioner (hereinafter referred to as the informant').

(2.) It is not necessary to set out the factual position in detail. The essential features are as follows: By order dated 15-2-1993, the learned J.M.F.C. directed issue of summons to the chargesheet witnesses fixing their appearance to 15-3-1993. On that date no witness was present. Order was again passed to issue summons to the charge sheet witnesses 1 to 4 fixing 3-4-1993. The process was repeated on 3-4-1993, 29-4-1993 and 11-5-1993. Though the reason for direction to issue fresh summons is not forthcoming from record, it is apparent from the order-sheet that on the relevant dates no witness was present. On 28-5-1993, it was noticed that service of summons issued to charge sheet witnesses 1 to 4 was effected by affixture, as according to the process server, charge-sheet witness No.2 refused to accept her summons, as well as the summons issued to other three, who were her husband and sons; Bailable warrant, of Rs. 100/- was issued against those four. Fresh summonses were directed to be issued to remaining witnesses fixing 3-9-1993 for trial. On 3-7-1993 it was noticed than the bailable warrants issued had not been received back after execution. The Inspector-in-charge was directed to take steps in the matter, and direction was given for issue of fresh summonses to the remaining witnesses fixing 9-8-1993 for trial. On that date, it was noticed that the summons had not been served on charge-sheet witness No.5. The Inspector-in-charge of Mancheswar Police Station intimated that he was engaged in law and order duty and prayed for adjournment. The matter was taken up on 11-91993. It was noticed that no witness was present and service report had not been received. Fresh summonses were directed to be issued fixing 26-8-1993 for trial. On 23-3-1993 on witness was present and the bailable warrants issued against charge sheet witness Nos. 1 to 4 had not been received after execution. Direction was given for issue of non-bailable warrants against charge sheet witness Nos. 1 to 4 and for issue of summons to other witnesses fixing 20-9-1993 for trial on 20-9-1993 one Ranjan Kumar Behera charge sheet witness No.6 was examined, cross-examined and discharged as P.W. 1 a memorandum was filcd by the Assistant Public Prosecutor (in short, A.P.P.T) indicating that though the informant was always coming to Court on the date fixed, he was deliberately not turning up to give evidence. It was indicated that the charge-sheet witnesses Nos. 2 to 4, who are son and daughters of the informant, were also not turning up to Court to give their evidence deliberately at the instance of informant. Accordingly it was stated that it was not possible on the part of A.P.P. to bring them to the Court for their evidence. It was further indicated that in view of statement of P.W. 1, other charge-sheet witnesses need not be examined. The learned J.M.F.C. directed the matter to be placed on 21-9-1993 for consideration of the memorandum. On the said date, evidence from the side of prosecution was treated as closed, and later on statement of the accused under section 313 of the Code of Criminal Procedure, 1973 (in short, the CodeT) was recorded and argument; were heard at 3 p.m. Prayer was made by the informant at 3.45 p.m. to recall the order of closing the prosecution evidence and to record his evidence. The prayer was not accepted, and the judgment was delivered at4 p.m. directing acquittal of the accused under section 242(1) of the Code.

(3.) According to Mr. S.K. Misra, learned counsel for the informant, the course adopted by the learned A.P.P. and learned J.M.F.C. is somewhat unusual. It is submitted that there was no material to show service of any summons or warrant on the charge sheet witnesses 1 to 4. The charge-sheet witness No.2 had rightly refused the summons on behalf of others, and her refusal cannot be equated with service in accordance with law. The basis for filing the memorandum as indicated by the learned A.P.P. is without any material. There was nothing before him to show that there was any deliberate intent to avoid appearance. The learned counsel for the accused opposite party No.2, however, supported the order. According to him, section 64 of the Code provides the mode of service of summons, when persons summoned cannot be found, and refusal by charge-sheet witness No.2 was sufficient to hold that there was valid service of summons. It is submitted that the expression adult male member also includes a female by application of section 13 of the General Clauses Act, 1897 (in short, the General Act).