Jaman Shaw vs Benoy Naskar

A.C. Roy, J.—This is a Rule directed against, an order of acquittal purporting to have been, passed under Sub-section (11) of Section 251A, Code of Criminal Procedure, consequent upon non-appearance of witnesses on the dates fixed for evidence and a question about the procedure to be followed u/s 251A, Code of Criminal Procedure, and the powers and duties of the learned Magistrate under that section has arisen. For appreciation of the point and proper decision there on a short resume of the fact need be given. On June 2, 1958 a complaint was filed by the present Petitioner before the Subdivisional Magistrate, alleging'' against 11 opposite north''s and 5 others an offence u/s 395 of the Indian Penal Code. The learned Subdivisional Magistrate sent the complaint to the Officer-in-Charge of the Bangolar Police Station for treating the complaint as an F.I.R. and investigating into the case. After investigation the Police submitted a charge-sheet against all the 16 accused persons complained against. Upon that Police report and after perusing the Police papers as is required u/s 251, Code of Criminal Procedure, the learned Magistrate framed charges against the 11 opposite parties on May 7, 1959 for offences under Sections 147 and 379, Indian Pinal Code, and not u/s 395. Indian Pinal Code On that date, i.e., May 7, 1959 the learned Magistrate by his order fixed June 15, 16 and 17, 1959 for evidence and directed issue of summons to prosecution witnesses, "in consultation with C.S.I." obviously for ascertaining names and addresses of the witnesses and summoning them in batches for each of the three days fixed. Summons were issued but no return of service had been received in Court. On June 15, all the 11 accused persons were present but no prosecution witness was present and the learned Magistrate recorded the following order.

All the eleven accused persons are present. No P.W. present inspite of summons. Tomorrow for P.Ws. as already fixed. Accused as before.

On June 16 also for the 11 accused persons were, present but neither any prosecution witness nor even the Court Sub-Inspector was present and no steps were taken on that date by the prosecution by filing any petition. In that stage of affairs on June 16, 1959, the learned Magistrate passed an order of acquittal purporting to act u/s 251A(11), Code of Criminal Procedure. The order was in these terms:

All the eleven accused persons are present. No. P.W. present. No C.S.I. present. No petition filed by the prosecution. No P.W. appears, inspite of summons on these 2 dates. The prosecution does not produce any evidence nor is any petition filed showing the reasons (Next page being with) for non-production of witnesses. The prosecution does not appear to be keen on this ease and has failed to produce evidence to substantiate the charges framed against the accused persons. In view of this fact, the charges appear to be groundless. I therefore find all the accused persons not guilty under Sections 147/379, Indian Pinal Code, and acquit them u/s 251A(11), Code of Criminal Procedure.

The present Rule has been obtained by the person who had filed the original complaint before the Subdivisional Officer as above mentioned, and in support of the Rule the learned Advocate Mr. Dilip Kumar Dutt appearing on behalf of the Petitioner has raised three contentions:

(1) that the learned Magistrate ought to have framed charges u/s 395, Indian Pinal Code, and he committed, and error of law by minimising the offence and framing charges u/s 147 and 379, Indian Pinal Code, although materials before him showed all the elements of offence under, Section 395, Indian Pinal Code

(2) the learned Magistrate was bound to examine the prosecution witnesses summoned and should have compelled their attendance by issue of warrant of arrest against them if necessary and he acted without jurisdiction by acquitting the accused persons against whom charges had been framed without complying with the provisions of Sub-section (7) and other Sub-sections of Sections 251A, Code of Criminal Procedure

(3) although on June 15 and 16, 1959 witnesses for the prosecution were not present, the next day, June 17 had also been fixed for prosecution witnesses and before that date the order passed by the learned Magistrate, dated June 16, 1959, is entirely without jurisdiction and therefore must be set aside.

Regarding the first point of Mr. Dilip Dutt I may say at once that although the combined effect of Sections 147 and 379, Indian Pinal Code has ordinarily the look of making out an offence u/s 395, Indian Pinal Code, as a matter of law it is possible to contemplate a narrow sphere within which it need not be so. The common object charged u/s 147, Indian Pinal Code, was "theft" hut to make out an offence of "dacoits" as denned in Section 391, Indian Pinal Code, it is not enough that five or more persons conjointly commit or attempt to commit "theft" but they must do so to commit robbery. "Robbery" has been denned in Section 390, Indian Pinal Code, and in the para, in that section dinning when theft is robbery it has been provided that.

The offender for that and voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.

Therefore, even when five or more persons either commit theft or attempt to commit theft but the elements mentioned in Section 390, Indian Pinal Code, are not present, the offence of "dacoits" is not made out. For that reason, as I have said already, as a matter of law is possible to contemplate an incident of rioting with a common object of theft and attended by violence which is not within the,, definition of "dacoits. Whether or not the facts of a particular case bring it within that sphere is a question of fact at the stage of framing the charges for the Magistrate to consider. In the present case the particular order framing the charge does not of course show that the learned Magistrate kept that in mind or devoted consideration to that aspect, yet the charge as framed cannot be said to be illegal and I do hot therefore consider proper to revise the order framing the charge at this stage. If upon evidence it appears to the learned Magistrate that a charge different from one that has been framed is justified in law then it is always open to the learned Magistrate u/s 227, Code of Criminal Procedure, to alter or add to the charge a any time before judgment is pronounced, and to proceed with the trial upon such charge in accordance with law.

The second point urged by Mr. Dilip Dutt raises a question regarding the scope and power under Sub-section (7) of Section 251A. The learned Advocate for the opposite party Mr. Mukti Mukherjee has urged in answer to Mr. Dilip Duffs contentions that there is no duty caste u/s 251A on the Magistrate to summon witnesses to give evidence before him and further that the present Sub-section (7) directs the Magistrate is only "to proceed to take all such evidence as may be produced in support of the prosecution which connotes that is it is for the prosecution to produce before the Magistrate witnesses in support, of the prosecution." On the two successive dates fixed prosecution having failed to produce any witness and not having taken any steps at all, the stage of Sub-section (7) passed and the stage of Sub-section (11) of the Section 251A had arrived. Under that Sub-section there being no evidence at all before the learned Magistrate it was the duty of the learned Magistrate to make an order of acquittal and therefore the order as made is perfectly legal and within jurisdiction of the learned Magistrate. In support of his contention Mr. Mukherjee lias relied on the Bench decision of this Court Sm. Jyotirmoyee Bose Vs. Birendra Nath Prodhan and Others, , where their Lordships N.K. Sen and'' D.N. Das Gupta, JJ., held that u/s 251A(7) there is no duty cast on the learned Magistrate to summon witnesses unless applied for. In that case no summon had in fact been issued and two successive dates had been fixed for production of witnesses but on none of those dates any witness was present and the order of acquittal was passed on. the last of the dates so fixed for production of witnesses. In those circumstances their Lordships held that the order of acquittal was a valid order.

But in the present case summons were in fact directed to be issued "in consultation with the C.S.I." which connotes that the Police Officer who was conducting prosecution before the learned Magistrate had made a prayer for issue of summons and as three successive dates were being fixed for examination of witnesses. the batches of witnesses to be summoned for each of those days were to. be ascertained with the assistance of the said Police Officer for issuing summons accordingly.

Therefore the distinguishing feature of this case is that the learned Magistrate did issue summons on witnesses in batches for each of the three days June 15, 16 and 17, 1959. The decision cited by Mukherjee Sm. Jyotirmoyee Bose v. Birendra Nath, Prodhan and Ors. AIR (I960] Cal. 263, supports the view that when applied for summons can be issued and that decision is ho authority for the proposition that even when the learned Magistrate issues summons on witnesses, he need not exercise his powers under the Code to enforce their attendance and can make an order of acquittal because even the Police Officer conducting the prosecution was not present. An order of acquittal for non-appearance of a party to the proceeding is not Unknown to the Code. Such provisions "Occur hot only in Chapter XX in Section 247 but also in Chapter XXI in Section 259, Code of Criminal Procedure But the carefully guarded words in Section 259, Code of Criminal Procedure, indicates that such power is not only limited to cases instituted upon a complaint! but there are other limitations also. In new Section 251A, Code of Criminal Procedure, under which warrant cases instituted upon a Police Report have now to be tried, there is no provision analogous to Section 259, Code of Criminal Procedure, which apply to trials of cases instituted otherwise than on a Police Report.

The existence of the power to issue, summons when necessary is contemplated by the new Section 561A even at the stage of Sub-section (7) and it is clearly indicated by the "proviso" under that Sub-section, where power is given to the Magistrate to "''recall" any witness for further cross-examination. This recall must be. when necessary, by issue of summons, or by enforcement of the bond u/s 91, Code of Criminal Procedure. That section will not apply unless Magistrate has the power to issue summons and no bond could have been taken unless the court was empowered to issue summons or warrant. Therefore it is not correct to say, as Mr. Mukherjee tried to say, that under Sub-section (6) and (7) the Magistrate has no power at all to summon witnesses. The Bench decision above referred to does not support that contention and impliedly holds the contrary as their Lordships only held that Sub-section (6) does not enjoin upon the Magistrate any duty to compel attendance of any witness unless it is applied for. When summons have in fact been issued by the learned Magistrate the stage for applying for further process to compel attendance can only be after the summons Lave been served -on the witnesses and the service returns have been received in Court. In this "respect it is necessary to remember that the Form for summons to witness-Form XXXI of Schedule v. of the Code by dint of Section 555, Code of Criminal Procedure., is a part of the Code and that form contains within it the warning that "warrant will he issued to compel your attendance." I, therefore, hold that when summons have been issued it is the duty of the Magistrate to follow it up by other processes to compel attendance. While I hold so I also observe that no steps were taken by the prosecution on June 15, and 16, 1959 and that omission ought never to have occurred and the'' District Magistrate who represents the State in such prosecution should take steps to ensure that: such omission to appear before the learned Magistrate, do not occur.

Moreover, power to summon witnesses at any stage has been given by Section 540, Code of Criminal Procedure, and that such power in proper eases may be exercised at the stage of Sub-section (7) of Section 251A has been held in Madras High Court in the case. In Re: V.S. Ramanathan, and also in this Court by my learned Brother, Debabrata Mukherjee. J. in The State (Rameswar Tewari) Vs. Jagadish Pandey, . I respectfully agree with that. view. I therefore hold that though there is no duty enjoined yet it is within the power of the learned Magistrate tinder Sub-sections (6) and (7) of Section 251A in proper cases to issue summons upon the witnesses to give evidence before him at that stage and when, on the prayer of prosecution Summons have been issued, it is his plain duty to former into use all the processes of law to compel their attendance before stage of Sub-section (7) is passed and the stage of Sub-section (72) can be said to have been reached. In the present case the learned Magistrate has failed to do so and therefore the order of acquittal has been illegal and without jurisdiction and must be set aside. Before learning this point I ought to mention that the language employed by the learned Magistrate in his order, dated June 16, 1959, shows that by the omission of the prosecution to produce wit nesses before him at that stage the learned Magistrate was really thinking that he can go back to the stage before the charges were framed, that is, to the stage of Sub-section (4) of Section 251 A, and consider that the "charges against the accused were groundless." hi my view this he can never do. For making an order of acquittal under Sub-section (11) he has to "find the accused not guilty". Such a finding can be arrived at ordinarily upon consideration of evidence produced and also when no evidence is forthcoming at all. In a case where summons to witness have been issued the Court is enabled to say that no evidence is forth coming only after the Court has exhausted the processes under the Code to compel attendance of witnesses.

Third contention of Mr. Dilip Dutt is also, in my view, a sound proposition. Here the learned Magistarte fixed three successive dates for production of prosecution witnesses and summoned witnesses in batches for all those days June 15, 13, and 17 of 1959. In that stage of record, to be able to say that no witness has been produced by the prosecution as required by sub s. (7) of Section 251A, the Magistrate was bound to wait till June 17, 1959. The omissions of the person in charge of the prosecution of this case is certainly a matter for taking serious notice of by the authorities concerned, and in my view is certainly a grave omission. But in considering the power and duty of the Magistrate as a matter of law, omission of any party can neither clothe the Magistrate with a power nor enable him to make a particular order unless the Code has authorised him to do so. Although witnesses were not present on June 15 and 16, 1959, yet it is conceivable that on June 17, 1959 witnesses would be produced and by the testimony of those witnesses prosecution would be able to bring home the charges. To reduce it to the language of Sub-section (7) of Section 251A, Code of Criminal Procedure, "all such evidence as may be produced in support of the prosecution" will include the witnesses summoned for appearance on June 17, 1959. The mere fact that prosecution did not produce the witnesses " summoned for June 15 and 16 cannot connote that none will be produced on 17th also and by making an order of acquittal on June 16, 1959 the learned Magistrate has failed to; comply, with Sub-section (7), that is, he has not taken yet "all such evidence as could be produced in support of prosecution" on June 17. On this ground also in my view the order must be set aside. In the case before the Division Bench Sm. Jytirmoyee Bose v. Birendra Nath Prodhan and Ors. (supra), this defect was not there because in that case two dates had been fixed and the order of acquittal was made on the second of such date, when the learned Magistrate was able to say that no witness has been produced in support of the prosecution.

I, therefore, make the Rule absolute and set aside the order of acquittal passed by the learned Magistrate on June 16, 1959, and the case is sent back with the direction that the Magistrate will now take proper steps in furtherance of the summons to witnesses issued by him and fix dates for examination of witnesses at least a for night after the arrival of the records in the Court of the Magistrate, and proceed to take all such evidence as may be produced in support of the prosecution and proceed with the trial from the stage of Sub-section (6) of Section 251A, Code of Criminal Procedure according to law, in the light of observations made above.