State of Punjab vs Gurmit Singh

H.R. Sodhi, J.—This is an appeal against the order of Judicial Magistrate, Ist Class, who on 3rd April, 1968, closed the prosecution case and acquitted the respondent of an offence u/s 25 of the Indian Arms Act, 1959 (Act 54 of 1959).

Shri Gurdev Singh, Assistant Sub-Inspector of Police Station Nurmahal, according to the prosecution story, is alleged to have recovered from possession of the respondent on 13th May, 1956, at 7 P.M. during the course of patrol duty a country-made 1-2 bore pistol in working condition with a live cartridge. The respondent carried no licence. He was arrested but later released on bail. There were several hearings on which the accused was present but no challan was put in by the police till 15th November, 1960, which covered a period of almost six months from the date of recovery. It may be mentioned that sanction for prosecution of the accused was obtained from the District Magistrate on 4th October, 1966. A copy of the report u/s 173, Criminal Procedure Code, was for the first time handed over to the accused on 5th December 1966, and the case adjourned to 17th of the same month for consideration of the question of charge. A charge was firmed on 17th December, 1966, and evidence of the prosecution witnesses was directed to be recorded on 4th February, 1967. No witness turned up on that date and the case stood adjourned to 23rd February, 1967, for the same purpose. No indications are available if the prosecution obtained any summons to secure through Court the presence of the witnesses on the previous two hearings but it is stated in the order of 23rd February 1967, that the witnesses be summoned for 14th April, 1967 as they had not turned up. No progress was made, on 14th April, 1967, as well and the witnesses still remained absent. They were summoned again for 7th June, 1967, and then for 3rd August, 1967. The next date of hearing was 5th September, 1967, when the presiding officer was on have with the result that the case was fixed for 5th October, 1967. No witness was present on this date too and the Magistrate ordered them to be summoned for 10th November, 1967, with a rider that no further opportunity will be given to the prosecution. The position did not improve on 10th November, 1967, and witnesses were again summoned for 28th November, 1967. It was for the first time that on 28th November, 1967, three of them were present but none was examined. The case was ordered to come up on 20th December, 1967 for recording of evidence. The evidence of the witnesses present on 28th November, 1967, was quite material and important as they were to depose to recovery of the unlicenced pistol. No reasons have, however, been given by the Magistrate for adjourning the case on that date. On December 20, 1967, two of the witnesses absented themselves and only one was present who was not examined because of an objection of the counsel for the accused that the evidence be not recorded piecemeal. The Magistrate adjourned the case to 15th February, 1968. The same witness was present and the same objection readily prevailed thus causing another adjournment to 3rd April, 1968. On 3rd April, 1968, the Magistrate passed the following order:-

Case called Accused on bail with counsel. P.S.I. for the State. Case has been pending in court for the evidence of the prosecution for the last one year and not a single witness had so far been examined. I close the prosecution by order. As there is no evidence against the accused, he is acquitted. File be consigned to record room after completion.

The order of acquittal, in our view, was not called for in the circumstances of the present case. Admittedly, the prosecuting agency was not only lethargic but it displayed complete indifferrence and lack of interest in assisting the Court to bring the trial to a conclusion expeditiously. For almost six months no challan was filed though there was not much left to be investigated after recovery of the unlicensed pistol. The case was registered immediately and witnesses were present on the spot who were mainly to be examined. The sanction of the District Magistrate was obtained after five months though there is no material on the record to show when the police moved in that direction. When the Challan was put in Court, no attempt was made to secure the presence of the witnesses. The accused was present for the first time on 5th December, 1966, when he was supplied a copy of the challan u/s 173, Criminal Procedure Code, and the case adjourned to 17th December, 1966, for considering the question of charge. The charge was framed on that date and the case fixed for 4th February, 1967, for recording of the statements of prosecution witnesses. There is nothing to show if any summonses were obtained by the police to secure the presence of the witnesses or any effort otherwise made to secure their attendance. The case had to be adjourned several times from 14th April, 1967 to 28th November, 1967, when three witnesses were present. The trial Magistrate was also a silent spectator of all that had been happening and he took no interest in the proceedings. The record does not show if summonses were issued and served or why it was not thought necessary to issue warrants to get the witnesses in Court. Witnesses appeared on 28th November, 1967, and the Magistrate adjourned the case to 20th December, 1967, without mentioning in his order as to why he was doing so. It is equally not clear whether all the witnesses present on 28th November, 1967, were bound down for 20th December, 1967, or not, but what we do find is that two of them were again absent and only one present on that date. An objection by the counsel for the accused that piecemeal evidence be not recorded was accepted by the Magistrate and the case adjourned from 20th December, 1967, to 15th February, 1968. The solitary witness who was present on 20th December, 1967, continued appearing but his evidence was not being recorded. The progress of events in the course of trail in this case leaves no room for doubt that neither the prosecution nor the Magistrate, took any interest in the case and that the accused was being harassed inasmuch as he had to be present on all the hearings.

Code of Criminal Procedure was amended in the year 1955 by the Code of Criminal Procedure (Amendment) Act, 1955. The object of the various amendments was to expedite inquiries and trials in criminal cases. With that object in view, by virtue of Section 251-A of the Code, a duty was cast on the prosecution to produce witnesses in warrant cases. After the amendments, a distinction has now been drawn between the trial of a warrant case instituted on police report and that on a complaint whether made by a Court or by a private party. Section 252(2) of the Code provides that the Magistrate has to ascertain, from the complainant or otherwise, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, so that he may summon to give evidence before himself such of them as he thinks necessary. The position in a case instituted on a police report is, however, different inasmuch as under sub-section (7) of section 251-A, the Magistrate is called upon to take such evidence as may be produced in support of the prosecution. This sub-section reads as under:-

(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 the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined, or recall any witness for further cross-examination.

It is mandatory in the sense that the Magistrate must examine all such evidence as may be produced in support of the prosecution. The duty being cast on the prosecution to produce evidence, the Magistrate is not required, as is the case u/s 252(2), to ascertain the names of the witnesses whose attendance may be necessary to give evidence. It follows as a necessary corollary that the prosecution which has a duty to produce witnesses must either bring them to Court or summon them through a legal process. Once process for the attendance of a witness has issued, the Court is also under a duty to see that the attendance is enforced and it must in a proper case issue coercive process like a warrant of arrest, if necessary. The object of all proceedings is the administration of justice and the prosecution should not be allowed to prolong the proceedings in a criminal trial at its own whim and pleasure. A Division Bench of this Court in State v. Kali Ram Nand Lal AIR 1868 P&H 87 had an occasion to consider the effect of changes in criminal procedure in this regard and did not subscribe to the opinion as expressed in some cases that in the trial of warrant cases instituted on police report, the Court is under no duty to compell attendance of the witnesses. The only practical and reasonable approach, keeping in view the objects of the change in law, that seems to us, is that the duty of producing evidence in support of the prosecution case is on the prosecution but once it has disclosed the names of the witnesses to the Court and taken recourse to the agency of the latter to secure their attendance, the Court is equally under an obligation to take all necessary steps including coercive measures to secure their attendance if they fail to turn up. It is not the object of Sub-section (7) of Section 25/A that the Magistrate is a silent spectator so as to let the prosecution proceed in its own way and cause harassment to the accused for any period of time as it may choose when the witnesses do not attend. The instant case is an example of the collossal disregard of duty both by the prosecution and the Magistrate. The offence is said to have been committed on 13th May, 1966, and the trial ended in acquittal after almost two years on 3rd April, 1968, on the ground that the prosecution had failed to produce evidence.

We would have allowed the appeal and directed retrial but the accused-respondent has already been harassed enough because of the conduct of the police and the Magistrate. He had to attend Court on several hearings during all this period and for no fault of his, evidence was not being produced. We are, therefore, constrained to dismiss the appeal with the above observations in order to avoid retrial after two years, keeping in view the nature of the offence.

A copy of this judgment should be sent to the Government which may have a proper inquiry made as to why the police did not produce evidence in the case for such a long time. The Registrar will also call for an explanation of the Magistrate and submit the same for our perusal.

M.M.S. Gujral

I agree.