Ram Ashrai Misra vs State of U.P.and Another

A.N. Gupta, J.—On 861985 one Radha Krishna Misra lodged an F.I.R. against opposite party No. 2 and three o there on the basis of which case crime No. 142 of 1985 under Section 342/323,1.P.C. was registered at police station Jathwara District Pratapgarh. The police investigated the case and filed chargesheet. Charges under Section 342/323, I.P.C. were framed against the accused persons. Both the offences are bailable but the offence under Section 342 is cognizable whereas Section 323, I.P.C. is non cognizable. The case is proceeding as a warrant trial. In the year 1990, prosecution had examined two witnesses of fact. The other witnesses of fact were not examined probably because they are said to have filed their affidavits in favour of the accused persons. When the case was taken on 2661995 for prosecution evidence, on behalf of the prosecution an application was moved to summon the witnesses by issuing nonbailable warrants of arrest. The learned Magistrate by observing that since 1990, twenty five dates have been given but the prosecution did not examine any other witness rejected the application, closed the prosecution evidence and fixed the case for recording the statement of accused persons under Section 313, Cr. PC. and for defence evidence. After this order was passed, the prosecution moved an application on the same day requesting the learned Magistrate to summon the Investigating Officer and the Medical Officer who had examined the injured under Section 311, Cr. P.C. It appears that no order has been passed by the learned Magistrate on the application.

The applicant is a person who is said to have been injured in the occurrence. In para 8 of the affidavit, it is alleged that summons for appearance of witnesses of public, namely, Maharani Din, Salim and Rakesh were given to the accused persons for service and they were returned with endorsement by the accused persons that the witnesses did not want to appear in the Court. If the summons were given to the accused persons for appearance of the prosecution eyewitnesses, it is simply shocking. The learned Sessions Judge shall inquire into this matter and if this allegation is found to be true, he shall report this matter with his comments to the Registrar of this Court for action being taken against the Magistrate.

It was argued by the learned Counsel for the petitioner that since it was a warrant case, it was bound duty of learned Magistrate to have made efforts to procure attendance of the prosecution witnesses by coercive process. The provision of Section 242(2), Cr. P.C. provides that the Magistrate may, on the application of the prosecution, issue summons to any of its witnesses directing him to attend or to produce any document or other thing. It has been throughout settled law that in the warrant trial, the learned Magistrate cannot close the prosecution evidence in the manner it has been done and it is his duty to procure the attendance of the prosecution witness if he fails to appear by coercive processes. In this case, the learned Magistrate not only did not make any efforts on his part to procure the attendance of the prosecution evidence but he put cold water on the application moved by the prosecution and rejected the same. It is true that the criminal case was pending before the learned Magistrate for about 10 years but it does not mean that the prosecution evidence be closed in this manner. In fact, this Court in the case of State of U.P. v. Babu, 1991 U.P. Criminal Rulings 54, has laid down that in the warrant trial case, it is the duty of the learned Magistrate to procure the attendance of the prosecution evidence. He cannot close prosecution evidence without making any efforts to procure their attendance by coercive process.

In the result, petition under Section 482, Cr. P.C. is allowed. The order dated 2661995 passed by the learned Magistrate is hereby quashed. The matter is sent back to him for proceeding with trial in accordance with the observations made in this judgment.

Let a certified copy of this judgment be sent to the learned Sessions Judge, Pratapgarh for holding inquiry against the learned Magistrate.