State of M.P. (Now C.G.) vs Kalbindar Singh and Others

Rajeshwar Lal Jhanwar, J.—This criminal appeal is directed against the order of acquittal dated 14.2.1994 passed in Cr. Case No. 4548/93, whereby the learned Chief Judicial Magistrate, Durg has acquitted the Respondents from the charges under Sections 186, 353, 294, 506, 341 and 506 read with Section 34 of the IPC.

Prosecution case, in short, is that in the night of 20.9.1990, Sanjay Kumar Agrawal, Sub-Inspector, Excise Department along with staff raided the Reegal Hotel, Bhilai in connection with illicit sale of liquor. After recovering illicit liquor from the hotel, Sanjay Kumar Agrawal took further steps for its seizure. At that time Respondent Kalibinder Singh, owner of the hotel, abused, threatened and obstructed Sanjay Kumar Agrawal in discharging his duty. Rest of the Respondents armed with lathi came there and they also threatened, abused and obstructed Sanjay Kumar Agrawal in discharging his official duties. Even when Respondent Kalbinder Singh was arrested and was being taken from there in the vehicle, the other Respondents stopped the vehicle and threatened Sanjay Kumar Agrawal and obstructed him.

Sanjay Kumar Agrawal lodged report in the Police Station-Bhilai Bhatti. FIR has been registered. Investigation took place. After due investigation, charge sheet against the Respondents under Sections 186, 353, 294, 506, 341 and 506 read with Section 34 of the IPC was filed in the Court of Chief Judicial Magistrate, Durg. Subsequently, on 30.11.1990, the case was transferred to the Court of Judicial Magistrate Second Class by the Chief Judicial Magistrate, Durg. On 8.12.1990, particulars of offence have been explained to all the Respondents. All of them abjured their guilt. After recording their plea, the Court directed for issuance of summons to the witnesses. On 8.1.1991, witnesses Sanjay Kumar Agrawal, N.N. Tiwari and R.K. Gupta, Sub-inspectors were present in the Court for adducing their evidence, but in the meantime, the case has been requisitioned by Chief Judicial Magistrate, therefore, without examining these witnesses, the case was sent to the Court of Chief Judicial Magistrate. On 28.1.1991, the case was sent back to the Court of Chief Judicial Magistrate as the C.J.M. passed an order on 18.1.1991 for taking back the case for trial to his Court. Thereafter, C.J.M. on various occasions directed issuance of summons to the witnesses. On 3.12.1993 one of the prosecution witness N.N. Tiwari was present but due to absence of accused persons, the above witness was not examined by the Court. Thereafter, after appearance of the accused persons, again the Court directed for issuance of summons. On 29.1.1994, the Court afforded last opportunity to the prosecution for issuance of summons to the witnesses by fixing a date for adducing evidence on 14.2.1994. On 14.2.1994, none of the witnesses was present, summons has also not returned. Prosecution did not pray for further time and also did not make any application for issuance of summons to the above witnesses. The Chief Judicial Magistrate closed the case assigning the reasons that the case was pending since 1990 and so many opportunities have already been given to the prosecution for production of the witnesses., but prosecution failed to produce its witnesses. On the same date after hearing the parties, he recorded the impugned order of acquittal.

I have heard learned Counsel for the respective parities and have also perused record of the Court below.

The case has been tried by the Court below in accordance with the procedure prescribed in Chapter XX of the Code of Criminal Procedure i.e.

Trial of Summons-Cases by Magistrates''. Section 254 of the Code of Criminal Procedure reads as under:

(1) If the Magistrate does not convict the accused u/s 252 or Section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.

(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.

(3) The Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court.

From reading of the above provision as a whole, it is clear that in this case it was the duty of the prosecution to adduce evidence in its support and if they file application for issuance of summons to the witnesses, only in that case if the Magistrate thinks fit, may direct issuance of summons to the above witnesses. In this case with specific direction, the prosecution was given last opportunity to produce their witnesses but witnesses were not produced. Even the prosecution did not file any application for issuance of summons or made request for allowing further opportunity to produce the witnesses. Therefore, the trial Court was not bound to further adjourn the case. It is evident from the record that the case was pending since 1990 and sufficient opportunities for production of witnesses were given to the prosecution, even with specific direction, last opportunity has been given, but it failed to do so and also did not seek further adjournment for production of witnesses or preferred any application for issuance of summons, therefore, the case was closed and the impugned order of acquittal was passed.

For the foregoing reasons, I am of the considered opinion that the acquittal of the Respondents of the charges under Sections 186, 353, 294, 506, 341 and 506 read with Section 34 of the IPC is well merited and does not call for any interference by this Court.

In the result, the appeal has no merit and is accordingly dismissed.