Joseph vs State, Devadhasan, Pathrose and Kumaravel

N. Dhinakar, J.—This revision is at the instance of the do facto complainant in crime No. 50/1994 on the file of the first Respondent police

station, which ultimately resulted in filing of the final report against Respondents 2 to 4 herein before the Judical Magistrate No. II. Kulithurai and

the cognizance of the same was taken by the Magistrate in Calender Case No. 29 of 1995 against Respondents 2 to 4 for the offences punishable

under Sections 147, 148, 452, 323, 324 and 506(ii) read with 149 of the Indian Penal Code. The documents were furnished to Respondents 2 to

4 and they were also questioned on the charges. They pleaded not guilty. Thereafter, the learned Magistrate, by an order dated 10.01.1997

acquitted Respondents 2 to 4 by invoking the provisions of Section 321(b) of the Code of Criminal Procedure holding that inspite of repeated

summons to the witnesses, the prosecution did not produce the witnesses. He has relied upon a judgment reported in Sachchida Nand and

Another Vs. Pooran Mal and Another, for his decision.

Learned Counsel for the Petitioner submits that the learned Magistrate has committed an illegality in invoking the provision of Section 321(b) of

the Code of Criminal Procedure for acquitting the accused, since the said provision contemplates that the Public Prosecutor or the Assistant Public

Prosecutor incharge of a case may, with the consent of the Court, at any time before the judgment is pronounced withdraw from the prosecution.

I am at a loss to understand as to how the learned Magistrate invoked Sub-section (b) of Section 321 of the Code of Criminal Procedure to

acquit the accused for the non production of witnesses. The non production of witnesses does not mean that the Public Prosecutor had withdrawn

the case. Even to withdraw a case, the consent of the Court is required. In this case the Public Prosecutor neither filed a petition for withdrawal of

the (sic) nor the Court gave consent. Under the circumstances, the learned Magistrate has committed an illegality in acquitting the accused by

invoking Section 321(b) of the Code of Criminal Procedure. It is unfortunate that the learned Magistrate had relied upon the reported decision

Sachchida Nand and Another Vs. Pooran Mal and Another, for acquitting the accused. I have perused the decision and the said decision has no

relevance to the facts or law in this case and therefore, in my view the learned Magistrate has committed a judicial impropriety.

It is also unfortunate that the learned Magistrate did not consider the judgment of the Full Bench of this Court in State v. Veerappan and Ors. (

1980 L.W. (Crl.) 187 ), where the Full Bench of this Court held that 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 Code of Criminal Procedure, 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 witness 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. Code of Criminal Procedure in the case of warrant cases instituted on a

police report and u/s 255(1) Code of Criminal Procedure in summons cases. The Full Bench further held that an acquittal of the accused merely on

the ground that the prosecution had not produced the witnesses would not be proper, if the Court had not on an application by the prosecution

discharged its duty of summoning and enforcing the attendance of witnesses. Where summons issued have not been served on the witness by a

police officer u/s 62 repeatedly, the Magistrate may resort to this provision of issuing the summons and sending it by registered post to the witness.

Of course, if after due service, the witness does not appear before the Court, the Court should issue coercive processes for securing the presence

of the witness before the Court. In suitable cases or in cases of chronic or persistent failure to appear in response to the summons a complaint can

be laid u/s 174 of the Indian Penal Code.

The above judgment of the Full Bench says that the Court should take coercive steps if the witnesses are not responding to the summons.

Admittedly, in this case, the Magistrate, not only did not take any coercive steps, but had acquitted the accused by invoking wrong provision of the

Code of Criminal Procedure and also by citing a judgment which is not relevant to the facts of the case.

In view of the discussion made above, the revision deserves to be allowed and it is, accordingly allowed. The matter is remanded back to the

trial Court for fresh disposal. The learned Magistrate is directed to dispose of the matter within six weeks from the date of receipt of a copy of this

order. The learned Additional Public Prosecutor undertakes that the concerned Police Officer will produce the witnesses, and co-operate for the

early disposal of the case. Respondents 2 to 4 herein are directed to appear before the trial Court on 15.12.2000.