JOGENDRA NARAIN CHAUDHRY Vs. GANGA PRASAD SAH

JUDGEMENT

(1.) This petition is directed against an order of Mr. I. C. Pandey, a Magistrate of the second class, allowing a petition under Section 494, Criminal P. C. and acquitting the accused persons, opposite party, in case No. G. R. 58 of 1951 of the Sitamarhi Court.

(2.) The occurrence to which the case relates is said to have taken place about 16-1-1951, when the petitioner Jogendra Narain Choudhry was detained in jail custody in connection with a proceeding under Section 107, Criminal P. C. He was released from jail custody on 29-1-1951, and on 31st January lodged the first information report on which a case under Section 379/411, I. P, C. was instituted against the opposite party. The charge-sheet in the case was submitted by the Sub-Inspector of Police on 8-2-1951, and the case was transferred to Mr. R. K. P. Sinha, a first class Magistrate, for trial. Mr. Sinha being out of the station, an order was recorded directing the prosecution witnesses to be summoned for 10-3-1951. On that date in the presence of the accused persons six prosecution witnesses were examined and three tendered and on this evidence the Magistrate framed charges under Section 411/379, I. P. C. The accused persons having pleaded not guilty, 31-3-1951 was fixed for cross-examination after charge. On that date, however, only the complainant and the accused persons were present. The case was, therefore, adjourned to 23-4-1951, and the Magistrate passed proper orders for enforcing the attendance of the absent prosecution witnesses. He also directed summons to issue for certain other witnesses whom the prosecution wished to examine. On 23rd April one more witness was examined and his cross-examination after charge was declined. The cross-examination of the tendered witnesses after charge was also declined. These witnesses were, therefore, discharged and 24-4-1951 was fixed for further cross-examination. On that date an adjournment was granted on the ground that the lawyer for the accused was ill and the case was fixed for further evidence and cross-examination on 23-5-1951, and 24-5-1951. On 14-5-1951, however, the case was recalled to the general file by the Sub-Divisional Magistrate and transferred to Mr. D. Prasad, another Magistrate of the first class. No reason was given in the order of the Sub-Divisional Magistrate for the transfer from the file of Mr. R. K. P. Sinha -- a fact which was commented upon in the petition for revision. Although this comment seems to have been intended to convey a reflection on the public authorities and to support the petitioners' case that there was something improper in the steps taken for Securing the order of withdrawal, no attempt was made by the District Magistrate to furnish an explanation on the point. We have, therefore, been at great pains to discover the reason, and owing to the industry of the Government Pleader who appeared before us on behalf of the State, have discovered from the Civil Lists of that time that case was probably taken from the file of Mr. Sinha and given to another Magistrate because Mr. Sinha was transferred from Sitamarhi. Had the District Magistrate given the necessary explanation much time of this Court would have been saved.

(3.) The case was put up before Mr. D. Prasad on 23-5-1951 on which day the accused persons intimated that they did not wish for a 'de novo' trial. Instead of proceeding to take further evidence and to allow the accused persons to cross-examine the witnesses already examined, as has been provided for by the order of 24th April, Mr. Prasad adjourned the case to 20th June. No reason is given why the case was not taken up for trial on 23rd and 24th May. On 20th June six prosecution witnesses were present, five of them already examined and one not. On this date Jogendra Choudhry was recalled and proved certain papers. Also the sixth witness who had not yet been examined was examined and his cross-examination was declined. A further adjournment was then given to the accused persons for the cross-examination of the remaining prosecution witnesses on the ground that new documentary evidence had been put in and the defence had not come prepared to cross-examine the witnesses on the new facts thus introduced. It is not necessary to make any comment as to whether the adjournment was justified or not. On 19th July, which was the next date fixed for the case the hearing was not taken up on the ground that the Magistrate was busy with a 'namukammal' charge-sheet. The case was directed to be put up the next day, but again the hearing could not be taken up, this time because "no fresh prosecution witness has come." It is difficult to understand why the absence of fresh prosecution witnesses prevented the taking up of the cross-examination of the witnesses who had already been examined in chief. The next dates fixed in the case were the 9th and the 10th August. On 9th August the following order is recorded :