STATE Vs. MANGILAL RAM

JUDGEMENT

(1.) IN G. R. Case No. 1084 of 1965 a Judicial Magistrate at Chaibassa by order dated the 19th December, 1970 refused to adjourn the case further and to issue summonses to the prosecution witnesses at its instance. He closed the prosecution case and proceeded to examine the accused under Section 342 of the Code of Criminal Procedure hereinafter called 'the Code'. There were two accused and they had been charged of having committed embezzlement of Rs. 85/-. Thus, they are said to have committed offences under Sections 409 and 120-B of the Penal Code. The State applied to the Sessions Judge of Singhbhum at Chaibassa for making a reference to this Court under Section 438 of the Code. The learned 3rd Additional Sessions Judge, Chaibassa, on the basis of some decisions of High Courts thought that the order passed by the Magistrate was not justified in law. According to him, the learned Magistrate "had committed fatal irregularities in having not allowed the prosecution to have adduced evidence for which the Court had already issued processes and to have closed the case without waiting for service return and after calling for a fresh list of witnesses without having issued processes as prayed for." IN that view of the matter, the learned Additional Sessions Judge has recommended for quashing of the order of the learned Judicial Magistrate.

(2.) I shall state the facts of this case from the letter of reference, pointing out some inaccuracies here and there. The offence is said to have been committed in the year 1965. Chargesheet was submitted on the 9th June, 1967, and upon police report, cognizance was taken by the Sub-divisional Magistrate on the 10th July, 1967. He transferred the case to the file of Shri C. N. Singh, Munsif Magistrate 1st Class, Chaibassa. The case was later on transferred to the Court of Shri H. K. Bhattacharya, Judicial Magistrate 1st Class, Chaibassa from the Court of Shri C. N. Singh. After examining P. W. 1 on the 22nd December, 1969, Shri Bhattacharya was of the opinion that the case was such as was fit to be tried by him because it involved defalcation of a petty sum of Rs. 85/-. He did not think it necessary to proceed with the enquiry under Chapter XVIII of the Code and proceeded to try the case himself. Thereafter the next date fixed in the Case was 3-2-1970 for examination of the remaining prosecution witnesses. Because of their absence on that date the case was adjourned to 14-3-1970 and again to 29-4-1970 for the same reason on 29-4-1970 no prosecution witness was present. The case was adjourned to 30-5-1970 and a direction was given to the prosecution to bring its witnesses. Summonses were also directed to be issued to the prosecution witnesses. I may state one fact here. When I proceed to discuss hereinafter the law relating to the trial of warrant cases instituted on police report, I shall point out that it is not always necessary or incumbent upon the trying Court to issue summonses to the - prosecution witnesses unless and until prayer in that behalf is made by the prosecution. To resume the sequence of fact, on 30-5-1970 no prosecution witness was present and the prosecution was again directed to bring witnesses on 23-6-1970. It is not clear from this order whether summonses had been issued to or served upon the prosecution witnesses. Then, on the next date fixed, i.e. on 23-6-1970 the prosecution again failed to produce any witness. The learned Additional Sessions Judge has not stated one fact from the order-sheet of that date. What is recorded therein is that a petition was filed on behalf of the accused stating that the case had been fixed for hearing since long and the prosecution did not produce any witness so the accused may be discharged. After hearing this matter the learned Magistrate stated- On perusal of the record it appears that the summonses were issued against the witnesses but the S. R. has been received after service. A. D. P. is directed to produce his witness on the next date, and office to send summons at once. The A.D.P. was also directed to furnish fresh addresses of the witnesses within ten days. The case was adjourned to 6-8-1970. There are two confusions here. One is that when the summonses had been served why summonses were issued again is not clear. The direction to the A. D. P. to furnish fresh addresses of the witnesses within ten days was not complied with. The learned Additional Sessions Judge has said that this order does not appear to have been communicated to the A. D. P. I must state one matter here. When an order is passed on a date fixed in a case it is not incumbent upon the Court to communicate the order to the lawyer of a party, whether the party is the State or a private person. It is the duty of the lawyer concerned, whether he is the State lawyer or an Assistant District Prosecutor, to know what order has been passed by the Court on a date which was fixed in the case. There nothing to indicate that the A. D. P. was not aware of this order and, therefore he did not comply with it. The learned Additional Sessions Judge, in my opinion, was not justified in making a continent that because this order was not communicated to the A. D. P. therefore, per-haps, he could not comply with it.

(3.) THE question is : Whether the order of the learned Magistrate dated the 19th December, 1970 is contrary to law, or on the facts and in the circumstances of the case, fit to be quashed by this Court in the reference made by the learned Additional Sessions Judge?