STATE Vs. GH MOHD RAJA

JUDGEMENT

(1.) THIS is a criminal reference and has been made by the learned Sessions Judge, Srinagar, recommending the quashing of the impugned order and directing, the trial court to proceed afresh in the case from the stage at which it closed the evidence of the prosecution.

(2.) IT appears that the police had challaned the accused respondents in the court of the 1st Addl, Munsiff Magistrate 1st class Srinagar under section 409 RPC. The court directed the prosecution to produce evidence on 29 -4 -1968 but on that date no witness was present and the case was adjourned to 13 -5 -1968, on that date too none of the prosecution witness was present and the case again postponed to 29 -5 -68. On that date as well the witnesses for prosecution were not present and the trial court gave one more opportunity to the prosecution to produce the evidence and adjourned the case to 18 -6 -1968. On this date 5 prosecution witnesses were examined and thereafter on 17 -7 -68 none of the prosecution witnesses was present and the case was adjourned to 29 -7 1968. On this date the statements of 4 prosecution witnesses were recorded and the case was adjourned to 13 -8 -1968 On this date the court observed that as the remaining prosecution witnesses were not present, there -fore the evidence for the prosecution was closed. Feeling aggrieved by this order the State went up in revision before the Sessions Court. The learned Sessions Judge after hearing the arguments in the case has made the above reference.

(3.) I have heard the arguments in the case. Learned counsel appearing on behalf of the respondents while opposing this reference has argued that the provisions of section 251 -A have under gone a drastic change in language after the amendment of 1956 in the Code of Criminal Procedure which amendment came into force in the year 1964 in the State. It is submitted that where the prosecution in the criminal case under takes to produce the prosecution witnesses the entire responsibility for the production of witnesses is on the prosecutor. But where the prosecutor applies to the court and seeks the assistance of the court for securing attendance of the witnesses, it is, in that case, the duty of the Magistrate to summon the witnesses. On the basis of this interpretation on the language of section 251 (7) it is submitted that in the instant case as the prosecutor had not applied to the court for issuing process to the witnesses but himself undertook to produce the witnesses then because the responsibility was his, therefore if he failed to produce the witnesses inspite of the fact that a number of opportunities were given to him by the trial court and thereafter the court closed the prosecution evidence then in such circumstances the court was justified in passing such an order. Reliance is placed on a number of authorities e. g, AIR 1964 Patna 351 and AIR 1965 Tripura 39. As against this the Deputy Advocate General appearing for the State has submitted that the trial court did not give sufficient terms to the prosecution to produce all the witnesses in the case. There were Government servants who had been cited as witnesses in the case and in their case it was the duty of the court to summon them as the prosecutor could not himself produce them. The trial court had not issued any summons for securing attendance of these witnesses and had without that closed the evidence for the prosecution This act of the court below was not justified. Therefore the reference made by the Sessions Judge, it is submitted was not improper. It is however, conceded by the Deputy Advocate General that there is no application on the record filed by the APP to show that he ever requested the court to issue summons to the prosecution witnesses.