STATE Vs. MOHD BHAT

JUDGEMENT

(1.) MOHD . Bhat the respondent herein, is an accused in a case u/s 457/360 R. P. C. pending before the Judicial Magistrate Ganderbal. One of the witnesses cited by the prosecution in this case is Ali Mohd. Assistant Engineer, Sub Division, Sumbal. Summons were issued to this witness for the first time but the witness did not attend the court in answer to the summons and therefore a bailable warrant was issued against him. The bailable warrant was not served and the witness did not appear. The prosecution appears to have then undertaken to produce this witness on their own responsibility and when the prosecution did not produce this witness on the date fixed for his evidence. The Magistrate closed the evidence of this witness. Against this order of the learned Magistrate the State preferred a revision in the court of CJM Srinagar. The learned CJM has made a reference to this court recommending that the order of the Judicial Magistrate closing the evidence of this witness be quashed.

(2.) CONSIDERING the status of this witness the inability of the prosecution to produce this witness on their own responsibility is easily understandable. Primarily it is the duty of the court to secure the presence of the witness cited by the prosecution, It is no doubt true that under a working arrangement the court relies upon the cooperation of the prosecution agency for production of witnesses and it is also the duty of the prosecution agency to see that the witnesses cited by them are served with summons and that they are present in court on the date fixed for recording their evidence. It is a matter of mutual cooperation between the court and the prosecution agency and without such cooperation it would not be possible for the court to dispose of the cases expeditiously. But as already stated the court cannot throw the entire responsibility on the prosecution agency for producing their witnesses.

(3.) MR . Malik the learned Addl. Adv. General appearing for the State has stated that if the summons or bailable warrant is issued against this witness, the prosecution agency shall make every attempt to have it served or executed on the witness. This witness is a very important witness for the prosecution. Taking into consideration all the circumstances I am of the view that some effort should be made by the court to secure the presence of this witness. The order of the Judicial Magistrate Ganderbal closing the evidence of this witness is quashed and he is directed to issue fresh summons or bailable warrant as he considers necessary to secure the presence of this witness. The prosecution agency shall also see it that the summons or the bailable warrant is served on the witness.