Bihar State Small Industries Corporation vs State of Bihar and Another

S.S. Sandhawalia, C.J.—What is the duty of the trying Magistrate for compelling the attendance of prosecution witnesses in a warrant case

instituted on police report? What is his role in the event of their non-production by the prosecution (despite the issuance of coercive process) on

account of its pronounced negligence or recalcitrance over a long period of time? This is the twin question which has come to the fore in this

reference to the Division Bench.

The petitioner herein is the Bihar State Small Industries Corporation, and it is averred on its behalf that more than fifteen years ago - on the 6th

of May, 1969 - Shri B. K. Banerjee, Controller of Accounts of the petitioner corporation, made a surprise check of one of its establishments,

being the Industrial Estate situated at Digha, Patna. Respondent No. 2, Srideo Jha, at the relevant time, was posted as the Head Clerk-cum-

Accountant thereat and the Controller of Accounts detected a defalcation of more than a lac of rupees and made a report (Annexure 1) to the

Officer-in-Charge of the Digha Police Station, who registered a case under Sections 409 420 467 468 and 471 of the Indian Penal Code against

respondent No. 2. It is then the case that the police proceeded in a lackadaisical manner in relation to the investigation of the case, and it was not

till more than five years later that it submitted a charge sheet dated the 9th of September, 1974 against the accused Srideo Jha, respondent No. 2,

and the Magistrate took cognizance of the offence on the 17th of July, 1975. It is specifically averred in paragraph 3 of the petition that thereafter

the case was transferred to the files of different Magistrates and in spite of summons and even warrants of arrest having been issued to ensure the

attendance of witnesses named in the charge sheet the trying Magistrates found themselves unable to procure their presence in court in the absence

of any report from the police regarding the service of the process. Ultimately, on the 19th of September, 1979 Shri A. K. Sinha, Judicial

Magistrate, 1st Class, Patna, passed an order directing the prosecution to produce witnesses on the 29th of October, 1979. No witness, however,

appeared on the said date and even on the next date of 21st of November, 1979. Thereupon, he directed summonses to issue on witness Nos. 1

to 3 for the 18th of December, 1979 and having not received any service report adjourned the matter to the 19th of January, 1980 and again on

the non-appearance of witnesses directed the summons to reissue against witnesses Nos. 1 to 3 for the 13th of February, 1980. It is unnecessary

to advert to the tortuous process of the attempts of the courts to compel attendance of the witnesses and ultimately on the 4th of October, 1980

the learned Magistrate issued a direction to the Assistant Public Prosecutor to ensure the attendance of witnesses on the next date of the 14th of

October, 1980 with a warning that on their non-appearance the prosecution case may be closed. However, on the 14th of October, 1980 as well

no witness appeared and the learned Magistrate observed that the prosecution was not interested in the case and, accordingly, for the ends of

justice it was necessary that the prosecution be closed and the statement of the accused be recorded. Numerous adjournments followed thereafter

till 2nd of July, 1981 when after hearing arguments in the case he passed the impugned order(annexure 3), the operative ""part whereof is as

follows:

The prosecution did not examine a single witness in support of the charge. On perusal of the record it appears that the charge was framed long

back on 17-11-78 and since then the prosecution was given opportunity to produce the witnesses but he failed to do so. In the result the case was

closed.

The accused denied the commission of the alleged occurrence in his statement.

I do not find on record any evidence or material against the accused. This is actually a case of no evidence and the accused deserves acquittal.

He is acquitted u/s 251A(l1) Cr. P. C. and discharged from the bail bonds executed by him.

It is the case of the petitioner corporation that no notice was served on it with regard to the progress of the aforesaid prosecution case and in

despair on the 13th of December, 1978 a petition of complaint was filed in the court of the Chief Judicial Magistrate, Patna, on which the

Magistrate called for a report about the investigation and the stage of the police case. Since no further information was forthcoming on the 26th of

May, 1982, when the complainant was absent, the case was dismissed for non-compliance with the court''s order. It would appear that a revision

was carried to the court of the Sessions Judge, Patna, against the said order which was ultimately withdrawn by the petitioner on the 26th of

August, 1982.

It is, however, averred that thereafter the petitioner obtained copies of the relevant documens including the impugned order of acquittal dated

the 3rd July, 1981 and preferred the present petition challenging the same of 10th of February, 1983. r-

In the counter affidavit filed on behalf of respondent No. 2 it is first pointed out that the impugned order of acquittal was passed way back on

the 3rd of July, 1981 but the present petition has been preferred on 10th of February, 1983 - nearly 2 years thereafter - and thus, suffers from

gross laches and delay and, consequently, deserves dismissal on that score alone. It is categorically averred that the petitioner was fully aware of

the case and the dates fixed by the learned Magistrate and in order to deliberately harass and oppress the answering respondent if failed to

produce witnesses and to diligently prosecute the case. It is stated that the case being palpably false and fabricated, not a single witness was willing

to come forward to support the same, despite the issuance of process. Further the petitioner was fully aware of the proceedings and having

withdrawn the revision petition before the Sessions Judge, Patna, is not now entitled to press the present proceedings. Lastly it is highlighted that

the respondent has been obliged to undergo a harrowing period of investigation and trial for over 12 years extending from 1969 to 1981 and if the

order of acquittal is now upset, it would be virtually asking the respondent to face these proceedings till he is alive.

5A. When this case came up for admission before my learned Brother, S. S. Hasan, J., sitting singly, he noticed that there was a lot of controversy

as to what steps a trial court should take for ensuring the attendance of prosecution witnesses and inter alia adverted to The State of Bihar Vs.

Polo Mistry and Others, . Considering the significance of the question, the case was referred to a Division Bench for an authoritative decision and

that is how it is before us now.

Though the principles which are attracted for consideration of the larger question posed at the outset are of general application, yet it would be

apt to confine the issue to the trial of warrant cases by Magistrates instituted on a police report, as is the case here. Chapter XIX of the Code of

Criminal Procedure, 1973 (hereinafter to be referred to as the ''Code'') spells out the procedure for the trial of warrant cases by Magistrates in

precise detail. In terms it provides for the issuance of compulsive process to witnesses directing them to attend or to produce any document or

other thing at the instance of the prosecution or the defence. Herein three distinct situations may well arise and deserve to be categorised and dealt

with individually for the sake of clarity.

(i) where the prosecution undertakes to produce its evidence on its own or in any case does not seek the assistance of the court for the issuance of

summons or warrant for compelling the attendance of its witnesses;

(ii) where the prosecution applies for, and seeks the aid of the court for, the issuance of process either wholly or partially for the production of its

evidence; and

(iii) where despite the issuance of summonses or warrants of arrest by the court the same are not executed by the prosecution agency and

consequent upon such negligence or recalcitrance the witnesses do not appear over a prolonged period of time.

To my mind, the answer to the three situations aforesaid appears to be plain enough though inevitably there might appear a little confusion in the

penumbral regions. As regards the first case, it necessarily follows that where the prosecution either expressly undertakes to produce the evidence

on its own or in any case does not at any stage seek the aid of the court for the issuance of process then inevitably the duty of producing its

evidence in court is saddled entirely on itself. On a failure to discharge its duty, the inevitable consequences therefrom must follow. In my view, the

Magistrate would be under no duty or obligation to barge in on his own in the event of the refusal or failure of the prosecution to seek his

assistance to issue any compulsive process. In such a situation it would be plain that if the prosecution fails to produce its witnesses altogether or

does so insufficiently within a reasonable period of time granted by the court, the matter would have to be decided on the materials existing on the

record. Total non-production of evidence by the prosecution would inevitably lead to the acquittal of the accused which is not only warranted by

larger principle but equally by the express terms of the Code.

6A. In the second case, where the court''s assistance is sought for securing the attendance of prosecution witnesses, it is plain that ordinarily the

same would be provided by the issuance of process. On a proper application for summons to witnesses and in the event of non-compliance

therewith, for warrants, it would be the function of the court to compel attendance. This is not to say that the court has no discretion in the matter,

but ordinarily in such a situation it would be in error in declining its aid or its power to compel attendance when express resort is made to it.

Therefore, if the non-appearance of the prosecution witnesses is due to the court''s failure, refusal or negligence to issue the requisite process for

compelling the attendance of its witnesses then the prosecution cannot possibly be saddled with the blame of the non-attendance. In such a

situation if the court proceeds to discharge or acquit an accused, it may well be that such an order resulting from the non-production of evidence

because of the court''s default in compelling attendance may not be well founded.

Coming now to the third situation which, indeed, is the case here, it must first be noticed that the court must give its aid of the compulsive

process to secure the attendance of prosecution witnesses. However, having done so and issued the summons or warrant, as the case may be,

does its duty extend even further in case of the non-execution of the said process by the prossecuting agency over prolonged period of time?

Herein it is the petitioner''s own case in paragraph 3, that despite the issuance of summonses and even warrants of arrest against some of the

prosecution witnesses named in the charge sheet, not one of them could ,be . produced in court over a period of six years from the date of the

taking of cognizance by the Chief Judicial Magistrate on the 17th of July, 1975 to the 3rd of July, 1981 when the impugned order of acquittal was

recorded. Faced with this uphill factual position, Mr. Balabhadra Prasad Singh, the learned Counsel for the petitioner had taken the extreme stand

that it was the duty of the court alone to secure the attendance of the prosecution witnesses '' and if they did not choose to appear despite the

issuance of process then it is the failure of the court itself and no acquittal or discharge can follow on the ground. Reliance was sought to be placed

on The State of Bihar Vs. Polo Mistry and Others, and K. Madusudanan Namboodiri Vs. Unni Nair and Others, . Counsel then went to the length

of contending that in case the prosecuting agency (which, in a case instituted on police report, is, in essence, the police) fails to execute even the

non-bailable warrant, the duty would still remain on the shoulders of the court to secure their attendance one way or the other. It was the stand that

the Magistrate in this context should initiate proceeding for contempt of court to be taken up by the High Court against the recalcitrant police

agency.

With respect I am unable to subscribe to this extreme and what appears to me as a virtually doctrinaire stance. As would be noticed in detail

hereinafter, the court''s obligation is to issue ultimately non-bailable warrants of arrest for the attendance of witnesses, where so warranted.

Undoubtedly, it will give a reasonable time for their execution. However, the total burden of the production of witnesses and the execution of

process cannot be saddled on the court''s shoulders but, to my mind, rests substantially on the prosecuting and the police agency. This is the more

so in cases instituted on a police report. The claim that on the failure of its duty by the prosecution or the police agency to execute the warrants of

arrest or other compulsive process and to produce its own witnesses in court, the Magistrate is bound to resort to the ultimate weapon of the

proceeding by way of contempt of court for compelling attendance of prosecution witnesses appears to me as somewhat far-fetched. It is

significant to recall that the lower judiciary has no power to punish for contempt of court in such a situation. To suggest that as a matter of routine

whenever the prosecution fails to discharge the burden of executing compulsive process, the subordinate court should move the High Court for

contempt of court proceeding against the recalcitrant official appears, in practical terms, to be a somewhat farcical proposition. There seems no

option but to reject this submission of the learned Counsel for the petitioner.

Equally reliance on The State of Bihar Vs. Polo Mistry and Others, is not well placed. Therein the Magistrate on application had issued

summonses for the appearance of 15 witnesses on 17th, 18th and 19th of July, 1961 in equal batches. However, despite, the fact that summonses

had been served, no prosecution witness appeared on those dates and the Assistant Public Prosecutor made a prayer for the issue of warrant of

arrest against them but this was rejected. Thereafter, on the 19th of July, 1961, the learned Magistrate proceeded to acquit the respondents u/s

251A(l 1) of the Code on the ground of want of evidence against them, and on some queer reasoning which the High Court found patently

untenable. It is plain that this case is of no aid to the petitioner because in such a situation the Magistrate would be obliged to grant aid of

compulsive process by way of warrants against the prosecution witnesses and having unreasonably declined to do so, it could not punish the

prosecution for its own"" default. The High Court was thus right in setting aside the order of acquittal. This case is wholly distinguishable and,

indeed, hardly relevant to the issue. Similarly, reliance on K. Madusudanan Namboodiri Vs. Unni Nair and Others, is wholly irrelevant because it

merely holds that it was the duty of the Magistrate u/s 256 to recall a witness for further cross-examination and not for the complainant to produce

the said witness after a charge has been framed.

Now, examining the matter dispassionately, it would appear without pretending to be exhaustive in this context that the two compulsive

processes for securing the attendance of witnesses are those of the issuance of summons and of warrant, the latter being further divisible into

bailable and non-bailable one. In the event of a witness''s recalcitrance to appear in response to a summons after being duly served, the court is not

powerless and thereafter can, if need be, in the first instance, resort to the issuance of bailable or non-bailable warrants. The most stringent in this

field is, of course, the latter. It could not be seriously disputed before us that a non-bailable warrant by the nature of things, is usually directed to

the police agency for execution. The execution of such a warrant may well involve the use of force for arresting or keeping the delinquent in

custody, and inevitably the police is the primary agency for its execution.

Now, how far does the duty of the court extend in compelling attendance of Witnesses by virtually this last sanction of a non-bailable warrant

of arrest? As has been noticed above, the execution or carrying out this command of the court is with the police agency. The function of the court

is to grant the sanction of such a warrant giving a reasonable period of time for its execution, which would inevitably depend on the facts and

circumstances of each case. However, the mandatory duty of the court, to my mind, would not extend much further. If the police agency on

account of pronounced negligence or recalcitrance fails to execute the warrants of arrest for compelling the attendance of its own witnesses, it is

not for the court either to carry them out itself or to fold its hands in helplessness and wait till eternity for the execution of the same. In cases

instituted on police report the arm of the investigating agency itself is long enough to secure the attendance of its witnesses. However, when need

be, on a proper application filed by it, adequate assistance through the process of court would be given to the prosecution agency. However, the

duty to execute the ultimate compulsive process of non-bailable warrant of arrest can, by very nature of thing, lie on the police and the prosecuting

agency. If they would fail to perform this duty, it does not get transferred to the shoulder of the court itself. Indeed, in our adversary system of

justice, the court cannot inordinately take sides with either of the parties and turn itself into a prosecutor or a defence counsel. It must keep the

scale of justice even betwixt the prosecution and the accused. It has been said authoritatively that the role of the court herein is to keep to the rules

of game and act as a referee and not become the centre forward in the match. It cannot keep the sword of democles hanging over the head of the

accused merely because of the pronounced recalcitrance of the prosecuting agency to secure attendance of its witnesses even after the ultimate aid

of warrant has been granted by the court. In a recent Division Bench judgment in State of Bihar Vs. Ramdaras Ahir and Others, of this Court it has

now been held that the right of a speedy public trial is now a constitutional right of the citizen and he cannot be made to wait indefinitely at the

portals of the court at the mercy of, a negligent or even a callous prosecutor.

The view I am inclined to take is well buttressed by the conclusion arrived at by the Full Bench in The State (Tamil Nadu) Vs. Veerappan and

Others, . Therein, after an exhaustive discussion and reference to a plethora of relevant case law on the point (some of which is conflicting) it has

been observed:

After carefully considering all the aforesaid decisions and the views expressed therein, we are of the view that if the prosecution has made an

application for the issue of summons to its witnesses either u/s 242(2) or 254(2) of the Criminal Procedure Code it is the duty of the court to issue

summons to the prosecution witnesses and to secure the witnesses by exercising all the powers given to it under the Criminal Procedure Code, as

already indicated by us and if still the presence of the witnesses could not be secured and the prosecution also either on account of pronounced

negligence or- recalcitrance does not produce the witnesses after the Court had given it sufficient time and opportunities to do so, then -the Court,

being left with no other alternative would be justified in acquitting the accused for want of evidence to prove the prosecution case, u/s 248, Cr. P.

C, in the case of warrant cases instituted on a police report and u/s 255(1), Cr. P. C. in summons cases, and we answer the two questions

referred to us in the above terms.

Faced with the above, Mr. Balabhadra Prasad Singh, the learned Counsel for the petitioner, had vainly attempted to distinguish the aforesaid

conclusion on the ground that the same was not in line with some reasoning audoreference to authorities in the earlier part of the judgment. I am

unable to appreciate this stance because the Full Bench had expressly formulated the two questions before it and in specific terms had answered

the same in the aforesaid Paragraph 24 of the Report which inevitably is the ratio in the case.

To conclude, in answer to the question posed at the outset, it is held that in a case instituted on a police report if a proper application is made

by the prosecution, it is ordinarily the duty of the Magistrate to issue process and secure the presence of witnesses by exercising the powers given

to him under the Code for compelling their attendance. However, if despite the issuance of compulsive process and the performance of the duty

aforesaid the prosecution, on account of pronounced negligence or recalcitrance, fails to-execute such process and does not produce the witnesses

over a prolonged period of time then the court would be entitled to acquit the accused for want of evidence to prove the prosecution case.

Now applying the above, it is common ground that the case against respondent Srideo Jha was registered in January, 1969 and after a

protracted investigation cognizance of the offence was taken by the learned Chief Judicial Magistrate on the 17th of July, 1975. Despite the

issuance of summons and even warrants against the prosecution witnesses, not a single prosecution witness was examined for well-nigh six years.

The learned Magistrate, was therefore, eminently justified and, indeed, in the circumstances of the present case, was virtually duty bound to acquit

the accused. Consequently, no infirmity against the impugned order of acquittal can be found and the same must be upheld. The criminal

miscellaneous petition is without merit and is, accordingly, dismissed.

S. Shamsul Hasan, J.

I agree.