State of Madhya Pradesh vs Ram Singh Prem Singh and another

A.P. Sen, J.—This appeal by the State Government is directed against an order of the Magistrate First Class, Bilaspur, dated 20th July, 1971, acquitting the two respondents of an offence u/s 380 of the Indian Penal Code. Of these, the respondent No. 2, Shani, is reported to be dead.

The order of acquittal recorded by the learned Magistrate was wholly illegal and unwarranted, and has caused manifest miscarriage of justice. The facts, briefly are these. On 30-6-1971, the learned Magistrate framed a charge u/s 380 of the Indian Penal Code, and the accused having pleaded not guilty, fixed the case for 20-7-1971, as the date for the examination of the prosecution witnesses. He further directed that summons to the prosecution witnesses be issued. On 20-7-1971, i.e., on the date fixed, neither the Assistant Public Prosecutor nor the prosecution witnesses were present. The learned Magistrate thereupon closed the case for judgment, stating that there was no application made by the prosecution for summoning the witnesses, and acquitted the respondents of the charge u/s 380 of the Indian Penal Code. That was apparently wrong because the order-sheet dated 30-6-1971 contains a direction for summoning the prosecution witnesses in the following terms:--

Summon prosecution witnesses.

This clearly implies that the prosecution had on that day, made a request for summoning the witnesses. There was, therefore, no occasion for the prosecution to make an application afresh on the adjourned date, i.e. 20-7-1971, the date fixed for evidence. On that wrongful assumption, the learned Magistrate has recorded the order of acquittal.

The law is clear on the subject. In a case instituted on a police report as enumerated in section 251-A, the learned Magistrate had to adopt the procedure for trial in warrant case. It is true that in such case, no duty is cast upon the Magistrate under sub-section (6) thereof to compel the attendance of any witness, unless it is applied for. Jyotirmoyee Bose Vs. Birendra Nath Prodhan and Others, and Kailashchandra and Others Vs. District Judge and Others, . In the present case, however, the prosecution had made such a prayer, and the prayer was accepted by the learned Magistrate, by ordering that summons be issued to the prosecution witnesses. That being so, the rule laid down in these decisions relied on are not applicable.

In the present case, the fault lay in the office in not issuing summons to the witnesses as directed. It was, therefore, the duty of the learned Magistrate to see whether the direction as made by him, had been carried out or not. If the direction had been carried out, he had further to enquire into cause of non-service or non-return of summons. The weight of authority clearly supports that view. See, Public Prosecutor Vs. M. Sambaing Mudaliar and Others, , Paban Chandra Majumdar Vs. Dulal Ghosh and Another, Public Prosecutor, Andhra Pradesh Vs. Pachiyappa Mudaliar, and The State of Bihar Vs. Polo Mistry and Others,

In Paban Chandra Majumdar v. Dulal Ghosh and anr. (Supra), K.C. Sen, J. observed :

It has been decided in a case reported in Jyotirmoyee Bose v. Birendra Nath Prodhan, that sub-section (6) of section 251-A does not enjoin upon the Magistrate any duty to compel the attendance of any witness, unless it is applied for. From this decision it appears that if any application on behalf of the prosecution is made for the purpose of issuing process upon the witnesses the Magistrate may in his discretion accede to the prayer made by the prosecution and when once such a prayer is accepted it is the duty of the Magistrate to see whether the order as passed by him has been carried out or not. In this particular case I have already observed that his directions were never carried out and as such it was the bounden duty of the learned Magistrate to see, when once he has passed an order for issue of summons that the order has really been carried out.

We are in respectful agreement with the observations. In that view, the learned Magistrate had clearly the duty to inforce attendance of witnesses by issuing processes, and he failed in that duty. In a warrant case, it goes without saying that the prosecution witnesses had to be summoned at State expenses.

The result, therefore, is that the appeal succeeds and is allowed. The order of acquittal passed by the learned Magistrate is set aside, and the case is remanded for a re-trial according to law.