State vs Premnarain

Shivdayal, J.—These are three references u/s 438 of the Code of Criminal Procedure by the District Magistrate, Raisen, in three cases raising the same point.

Three Criminal Cases (No. 106 of 1961 State v. Kanhaiyalal; No. 111 of 1961, State v. Premnarain; and No. 113 of 1961 State v. Kashiram) were put up by the police in the Court of the Magistrate First Class, Bareli. All these are warrant cases. After framing charges, the Magistrate fixed them for recording prosecution evidence, directing the police to produce the witnesses. The Assistant Police Prosecutor requested the Court in writing to summon the witnesses as the police had no authority under the Code of Criminal Procedure to produce its witnesses. On the other hand, the trial Magistrate said that the Court had no power to summon the witnesses for the prosecution, as the cases were being tried u/s 251-A of the Code.

On behalf of the prosecution applications in revision were made to the District Magistrate, Raisen, who has referred the matter to this Court for a decision regarding the correctness and legality of the orders passed by the trial Magistrate in refusing to summon prosecution witnesses.

There appears to be no provision in the Code of Criminal Procedure which empowers the police to compel attendance of witnesses before Magistrates. What is more, Section 171 of the Code forbids a police officer to accompany the complainant or any witness.

It is true that Section 251-A does not enjoin upon the trial Magistrate to issue summonses to prosecution witnesses, nor does it specifically provide for such a power. It is enacted in Sub-section (6) of that section that if the accused refused to plead or does not plead guilty or claims to be tried, the Magistrate shall fix a date for the examination of witnesses. This is followed by Sub-section (7) which runs thus:

(7) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution, provided that............

All that this Sub-section says is that the Magistrate shall take all such evidence as may be produced'' in support of the prosecution. But provisions like those contained in Section 252(2) or 208 (3) or 244 (2) are not to be found in Section 251-A. I see no reason to think that this omission was studious.

When a Court is confronted with this difficulty it can be surmounted by taking recourse to the provisions in Section 540 of the Code of Criminal Procedure. I am clearly of the opinion that so long as Section 251-A is not amended, the Magistrate can liberally exercise his powers u/s 540 of the Code in the interest of justice.

In Jyotirmoyee Bose Vs. Birendra Nath Prodhan and Others, , it does not appear that the Magistrate was requested by the prosecution to summon witnesses The observations are:

It will be observed that under sub-sec (7), on the day fixed all prosecution evidence produced shall be taken. Under the former procedure i.e, before the amendment came into force as laid down u/s 252 and the following sections, the Magistrate had a duty to ascertain the names of the prosecution witnesses and to summon them. It is to be observed that there is no analogous provision in Section 251 (A) to the effect that it would be a duty of the Police Officer in charge to apply for the summons and to produce them. In the present case, the opposite parties claimed to be tried when the charges were read over and explained to them Sub-section (6) of Section 251 (A) does not enjoin upon the Magistrate any duty to compel the attendance of any witness unless it was applied for. We are, therefore, of the view that in a case tried under Sec 251 (A) of the Code, the Magistrate was not compelled as he was if the case was tried as a warrant case instituted other than on the police report to proceed in terms of Sections 256 and 257 of the Cod .

That case is, therefore, distinguishable. In saying that rub-section (6) of Section 251-A does not enjoin upon the Magistrate any duty to compel the attendance of any witness unless ft was applied for, it seems to be implied that in case there is an application the Magistrate can compel the attendance although the learned Judges did not expressly hold so.

In State v. Ramlal,: 1962 (2) Cri. LJ 331 (All) it is held that there is no authority in law for the proposition that the Public Prosecutor can make an application for summoning of the prosecution witnesses and in such a case the Magistrate in bound to summon the witnesses. The occasion for considering the point arose is an appeal against an order of acquittal. The contention raised on behalf of the State was that the Court was bound to issue summonses to call the prosecution witnesses. The learned Judge observed that the prosecution did not seriously press its demand for summoning the prosecution witnesses. In that context the learned Judge further observed that the Magistrate was not bound to summon the prosecution witnesses Thus it seems clear to me that the point on which the attention was focused was whether the Magistrate was under an obligation to summon prosecution witnesses whenever it was applied for. I do not see, as I cannot, that it is imperative to issue summonses in compliance (so to say) with the wishes of the counsel for the prosecution, but it is quite different to say that the Magistrate has no power to issue summonses. The Allahabad High Court did not consider the applicability of Section 540 of the Code of Criminal Procedure to such a case.

State v. John Abraham, 1962 (2) Cri. LJ 92 (1) (Kerala), was an appeal against acquittal which was based on the failure of the prosecution to examine its witnesses. In that case also there was no prayer for issuance of process to compel the attendance of witnesses and the learned Judge held that the Magistrate was not bound to examine all the witnesses mentioned in the police report and to issue process after appearance in case the prosecution failed to produce them. The question whether the Magistrate has no power to issue summonses was also not considered in that case.

However, in State v. Aboobakar 1961 (2) Cri. LJ 92 (2) (Kerala), it is held that the Court has power to summon material witnesses and examine u/s 540, Criminal Procedure Code, if their evidence appears to be essential for the just decision of the case and that the Court is not so helpless as to pass an order of acquittal of an accused for want of evidence. I am in respectful agreement with that view. The following observations from Burke in the Trial of Warren Hastings (cited in Rengaswami Naicker Vs. Muruga Naicken, , may be usefully recalled.

A judge is not placed in the high situation merely as a passive instrument of the parties. He has a duty of his own, independent of them an J that duty is to investigate the truth.

I feel fortified by the decision in State of Orissa v. Shiv Charan AIR 1952 Ori 157, in so, far as the learned Judge has applied Section 540, of the Code of Criminal Procedure Here I may recall with benefit the observations of Mr. Justice Bose in Sangram Singh v. Election Tribunal, Kotah AIR 1954 SC 425 (426):

A Code of procedure must be regarded as tuch. It is procedure something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.

I cannot leave this case without observing that this reference is not in proper form. When a reference is made u/s 438 of the Code of Criminal Procedure the referring Judge or Magistrate must apply his mind and express his opinion on the question to be referred. I would have rejected the reference and directed the District Magistrate to express his opinion and send it in proper form, but in view of the fact that the trial in three cases is being held up, I would prefer to avoid further delay.

In the result the order passed by the Magistrate First Class, Bareli on June 22, 1961, holding that he has no power to summon prosecution witnesses is set aside. He is directed to reconsider the question and exercise his discretion u/s 540 of the Code of Criminal Procedure.