STATE OF BIHAR Vs. POLO MISTRY

JUDGEMENT

(1.) This is an appeal by the State Government against an order of acquittal recorded by the learned Judicial Magistrate under Section 251-A(11) of the Code of Criminal Procedure. The circumstances in which the order under appeal came to be recorded are, briefly, these.

(2.) On the basis of a police report, the respondents, who are 22 in number, were summoned to take their trial for offences under Sections 147, 148, 448, 325 and 324 of the Indian Penal Code. The case was transferred to the learned Judicial Magistrate, Mr. M. Mustafa, for trial. On the 13th June, 1961, the learned Magistrate framed charges against the various respondents under Sets. 147, 148, 323, 324 and 325/34 of the Indian Penal Code, to which the respondents pleaded not guilty. On the same day, the learned Magistrate ordered sommonses to be issued for the appearance of the prosecution witnesses on the 17th, 18th and the 19th July, 1961, in equal batches. No prosecution witness, however, appeared in response to the summons on any of these three dates, in spite of the fact that the service report of the summonses had been received. On the 19th July, 1961, the learned Magistrate proceeded to acquit the respondents under Section 251-A(11) of the Code of Criminal Procedure, on the ground of want of evidence against them.

(3.) The point for consideration is whether, in the circumstances of the case, the Learned Magistrate was justified in recording the order of acquittal as aforesaid It seems to me that there is some misapprehension in the minds of some Magistrates as to the true scope of Sub-section (7) of Section 251-A, newly introduced in the Code of Criminal Procedure under the amendment of 1955. The aforesaid sub-section enjoins upon the Magistrate to take all such evidence as may be produced in support of the prosecution on the date fixed for the examination of the witnesses. This is taken as implying that it is the sole duty of the prosecution to produce the prosecution witnesses upon whose evidence it proposes to rely in support of its case. But it is sometimes overlooked that in order to be in a position to produce the evidence in support of the prosecution, the prosecution may either undertake to produce the prosecution witnesses through its own agency or secure their attendance in court through the agency of the Court. Where the prosecutor has himself undertaken to produce the prosecution witnesses, the entire responsibility for production of the evidence in support of the prosecution case is that of the prosecutor. But where the prosecutor has taken recourse to the agency of the Court for securing the attendance of the prosecution witnesses, upon whose evidence he proposes to rely in support of his case, it is, undoubtedly, the duty of the Magistrate to take steps for securing the attendance of the prosecution witnesses in his Court. In such a case, it cannot be held that the entire responsibility for securing the attendance of prosecution witnesses lies upon the prosecutor alone. It is only where the prosecutor finds himself unable to produce the prosecution witnesses through his own agency that he relies upon the agency of the Court for securing the attendance of the prosecution witnesses. In such an event, it is the obvious duty of the Magistrate concerned to take all such measures as may be found necessary under the law to compel the attendance of the prosecution witnesses.