Halkai @ Halku vs Mulua and Others

K.K. Varma, J.

Non-applicants 1 to 17 were acquitted by the Addl. Chief Judicial Magistrate, Ganjbasoda in Criminal case No. 1155/77 decided on 12-12-83 of the charges u/s 380 and 454 I.P.C framed on 22-8-80.

On 1-12-1983 formal witness Madhosingh (PW 1) was examined, declared ''hostile'' by prosecution. The Court refused the prosecution prayer for time to produce remaining witnesses. The Judge recorded an order of acquittal on the ground of want of evidence in support of the charge.

This revision has been filed by complainant Halkai.

The learned Counsel has submitted that the trial Court should have seen to the matter of issue and service of summonses and warrants against the witnesses and should not have penalised the prosecution in the manner he has done. The non-applicants learned Counsel countered by saying that the trial Court had given sufficient opportunity to the prosecution to produce its witnesses and was therefore justified in applying a closure of the prosecution evidence.

I have gone through the order sheets and the record of the trial Court. The trial Court had taken it upon itself to order issuance of summonses to the prosecution, and that is the practice adopted in this Stale by all the Judicial Magistrate, so, far as the State cases are concerned.

The record of the trial Court does not contain a single summons that is either a copy of a served summons or the unserved summonses of the witnesses. There is no marginal endorsements in the order sheets to show whether any summonses had been issued in compliance of the Court''s order and if so issued how many summonses had been issued and on what dates and to whom. Similarly there is nothing in the order-sheets of the trial Court to show that it had applied its mind at all to this aspect of the matter and also to the cases of the non-issuance, service or non-service of summonses and their relation to the non appearance of the prosecution witnesses. The A.P.P was also taking things very very lightly.

I am therefore of the view that the learned Magistrate made a very improper order of closing the prosecution evidence. The order is set aside. The parties shall now appear before the trial Court on 15-12-88. The trial Court shall pass a specific order showing the names of the prosecution witnesses and ordering issuance of summonses to them and also directing the A.P.P. to take over summonses and get them served and return to the trial Court well before the date of hearing fixed for receiving prosecution evidence.

In the result the revision petition is allowed and the order of acquittal dated 12-12-83 is hereby set aside, and the case of the original Court (Cri. C. No. 1155/77) is remanded to it.